Aug 01,2020 | 10 min read

The Applications Of Moral Rights In The Music Industry By Vaishvi Khare

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Introduction

The “moral rights” with respect to the copyright law in India basically deal with the protection of those non-commercial i.e. either personal, divine interest of/in work for the author. These rights are very essential and major part for the developing countries like India in making an immense contribution towards developing the culture. The moral rights act as and counterbalance against the TRIPS agreement which in turn is acting as a damaging agent to the development and also to the culture. Also, the moral rights have greatly favoured developing countries since a very long period of time, also countries have also tried a lot to include the concept of moral rights of authors very favourably in the legislation dealing with copyright laws in order to safeguard the Artist’s pride and prestige. It should be noted that as per the TRIPS agreement the moral rights which safeguard the non-commercial interest of the author in his work have been excluded.

Amarnath Sehgal v. Union of India and Anr was the first case involving the issue of moral rights in India. The case was first filed on 29th May 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 21st February 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.

Moral rights apply to literary, dramatic, musical or artistic works and films. This includes music, lyrics, original album artwork and music videos. They do not apply in the case of sound recordings, with the effect that whilst an artist can have moral rights for the music and lyrics to a song, no moral rights can be exercised in any recording of that same song. Moral rights do not apply in all circumstances. For example, where a work is created by you as an employee your employer will generally own the copyright to that work. In this scenario, you will only benefit from limited moral rights. This may be relevant to an artist who has, for example, signed a band agreement where the artist provides services to the band’s company or partnership as an employee.

Moral rights are primarily codified in the Berne Convention for the Protection of Literary and Artistic Works. Though they existed in France and Germany before then, The Berne Convention is the primary tool that has spread them worldwide.

Moral rights provide a set of rights that are separate from the economic rights granted by copyright law. They include:

  1. The Right of Attribution: The right of the creator to be credited when a work is copied or otherwise used.

  2. The Right of Anonymity (or Pseudonymity): The right of the creator to not be attributed or to be attributed under a different name if they chose.

  3. The Right of Integrity: The right to prevent uses of the work that might be offensive to the creator or harmful to his or her reputation.

In most countries, these rights are taken for granted and are simply a part of the artist’s rights. However, there are differences in how the rights are applied. In some countries, the rights are infinite and will last into perpetuity. In others, the rights expire at the same time as economic rights. In some applications, moral rights cannot be waived by a contract while in others they can. Finally, some countries say that the right must be proactively asserted while most do not have such a requirement

But regardless of the exact implementation, in all countries where moral rights exist, they are a powerful tool that enables creators to protect their work, build their reputation and further their careers.

If we talk about Moral Rights in the music industry, then the benefits are:

  • Moral rights grant the artist or composer the right to always be attributed for their work (or to distance themselves from work if they desire).

  • Moral rights grant them the right to object to uses that they deem offensive.

The importance of the first right is obvious. Many musicians, especially session musicians, are not credited for their time and creativity. Moral rights ensure that such musicians and composers have the right to be credited and will receive the attribution that they deserve. This helps them build careers by letting artists develop a fully-documented resume of their work.

The second is equally important as it allows artists to object to the use of their work that they might deem offensive. Whether it’s the use of their music in political campaigns, which has been a recurring theme this election cycle or the use of their music in films that the artist finds objectionable.

The latter was a problem for musician Connie Francis, who sued in 2002 objecting to the licensing of her music for “sexually themed” films she found inappropriate. Unfortunately for Francis, her case was dismissed in 2003. However, it would have stood a much better chance if European-style moral rights had been codified into laws for other countries.

Many feel moral rights could easily be handled through contracts and that musicians often discuss the terms of attribution and credit as part of their negotiations. However, these negotiations, especially with new artists, are routinely uneven in nature and artists are often forced to waive rights that can come back to haunt them later because they lack negotiating leverage.

Earlier in India, most of the film artists and musicians which were quite famous and dominant in the market at that time could not secure rights and financial status even though they were capable of excellent brilliance in their work. In the legal battles in the earlier time, the royalty for performance rights was offered to producers. In recent years,  Javed Akhtar stood up and took many steps in his power for securing the rights of people associated with the entertainment industry. In the amendment which took place on 7th June 2012 when it received the overall assent of the President. “The amendment did bring the Copyrights Act in confirmation with the WIPO Copyrights Treaty and WIPO Performances and Phonograms Treaty and reach way beyond that. This article specifically deals with the rights of singer, lyricist and composer that have been incorporated by the 2012 amendment.”

Provisions which deal with the moral rights under the Copyright Act, 1976:

Section 38B is a new provision in the Copyright Act which deals with the moral rights of performers. Moral rights of copyrights creator are recognized in civil law jurisdiction and also to some extent in common law jurisdiction. Moral rights of a copyright owner include incidental rights such as the right to attribution, the right to have work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work bars the work from alteration, distortion or mutilation. It must be noted that moral rights associated with the copyright-related work, is different from economic rights. Even when assignments are made moral rights of the copyright owner remains.

This particular provision — Section 38B(b) of the Act — states that ‘the performer of performance shall, independently of his right after assignment, either wholly or partially of his rights, have the right to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation’. The other right which a performer would have — under Section 38B(a) of the Act — is the right to claim to be identified as the performer of his performance except where omission is dictated by the manner of the use of the performance. This right under the proposed Section 38B(a) obviously cannot apply to extras in films as they are not credited by definition. It is pertinent to note that the provision also contains a safeguard against abuse of moral rights in the form of an Explanation which would state that ‘the mere removal of any portion of the performance for the purpose of editing, or to fit the recording within a limited duration, or any other modification required for purely technical reasons shall not be deemed to be prejudicial to the performer’s reputation’. This too is analogous to the rights granted to authors: the moral right of an author would not be considered to have been violated merely because his or her work has, not been displayed to his or her satisfaction.

For example: -If A sings a song “ Dildara” and assigned the rights to B, even though there is an agreement between A and B , A would have the rights to be acknowledged for being the singer and he can also prevent others from distorting it.
The problem of “literary theft” has long been recognized in Indian culture. Its widespread occurrence is documented in writing as early as the seventh century. It has been the subject of both complaint and investigation by Indian poets and aesthetic philosophers. For example, Anandavardhana, a ninth-century poet, undertakes a detailed analysis of the phenomenon: he identifies three distinct categories of theft, with only the last of the three, the “similarity between two individuals” being “permissible” conduct for authors. Moreover, in Indian tradition, the author was believed to have rights and interests in his ideas which were equivalent to his interests in the final work, the position that is drastically different from Western copyright tradition. It was  Krishnamurti who  points out, plagiarism in tenth-century India was defined as “an appropriation by a writer of words and ideas – I emphasize, and ideas from the work of another and passing them off as his own.”

Copyright in India is currently governed by the Copyright Act. Section 57 of the Copyright Act protects the moral right of the author, under the heading, “Author’s special right.” In recent years, the protection of moral rights in Section 57 has undergone a number of modifications. While current Indian law is specifically tailored to the requirements of Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works, the old Section 57 provided considerably more extensive protection for moral rights than what is required by Article 6bis. In particular, amendments to Section 57 restricted protection in two key areas: the scope of the author’s moral right of integrity, and the duration of moral rights. It is, therefore, interesting and important to consider the development of moral rights from the old to the new Section 57, examining the reasons why moral rights protection has been scaled back, and attempting to evaluate the consequences of these changes for cultural activities in the Subcontinent.

Current Indian Law and Article 6bis of the Berne Convention 

Section 57 of the Indian Copyright Act states: 

  1.   Independently of the author’s copyright and even after the assignment wholly or partially of the said copyright, the author of the work shall have the right to:
    (a)claim authorship of the work; and
    (b) restrain the 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:

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

  1.   The right conferred upon an author of the work by sub-section (1), other than the right to claim authorship of the work, may be exercised by the legal representatives of the author. 

The current Section 57 closely reflects the provisions of Article 6bis of the Berne Convention. Article 6bis provides for the protection of two moral rights in international copyright law: the author’s right of attribution, and his right to the integrity of his work. Article 6bis, which has remained virtually unchanged since its incorporation into the Berne Convention at the 1928 Rome revision conference, states that “the author shall have the 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.” This provision also specifies that authors’ moral rights shall be “independent” of their economic rights, and will, therefore, continue to rest with the author “even after the transfer” of his economic rights.

According to the Berne provisions, moral rights are to be protected, at a minimum, “at least until the expiry of the economic rights.” It is clear that the Berne Convention envisions the possibility of a longer-term of protection for moral rights; indeed, this particular formulation reflects the need to accommodate extended terms of moral rights protection in certain civil law jurisdictions. However, Article 6bis (2) also makes one concession allowing a shorter duration for moral rights: those countries whose legislation does not provide for the protection of all of the specified moral rights after the death of the author may cease to protect some moral rights upon his death. This provision was adopted in order to accommodate common-law actions in tort, which have long been presented by a number of common-law countries as legal alternatives to the statutory protection of moral rights per se. Actions such as defamation cannot normally be pursued after the death of the injured party. 

While India’s current provisions on moral rights meet the minimum standards set out in the Berne Convention, they represent a scaled-down version of the original Indian provisions on moral rights set out in the Act of 1957. The old Section 57 provided protection for moral rights that was both more comprehensive and more nuanced than the current provisions. A consideration of the old legislation alongside the new reveals that the earlier provisions, like legislation in many developing countries, may have been influenced favourably by the principles of Continental European law. In its breadth and expansiveness, it also reflected a typically Indian approach to culture.

While the concerns which may be at the heart of the Indian government’s reluctance to expand moral rights protection are legitimate, the approach of the courts is firmly grounded in the realities of Indian society, and may eventually prove to be the more far-sighted view. The process of industrialization in India has seen the development of the entertainment industry with great economic and political clout, especially in its incarnation as the commercial Hindi-language film industry. Indians, like people in most countries of the world, also have a fascination with the forms of American popular culture, which enjoy increasing prominence in India, perhaps at the expense of traditional cultural perspectives. At the same time, the development of less highly- commercialized activities, such as creative writing in regional languages, is haphazard and does not appear to enjoy any particular benefit of governmental support. In upholding moral rights protections, Indian courts have, in a sense, become the champions of individual creative efforts and non-commercial artistic endeavour – arduous and perhaps undervalued activities in present-day India. Through moral rights, their focus on the relationship between authors and their works has also allowed them to avoid the pitfalls of attempting to assess artistic quality, in an objective sense, in the courtroom.

Conclusion:

Consideration of moral rights on the international level reveals a pervasive dilemma. On one hand, awareness of the author’s moral interests, particularly in the environment of new technologies, appears to be growing. On the other hand, international negotiators seem to have reached a stalemate in their efforts to develop a harmonization programme for moral rights. The controversy over the author’s\artist’s moral interests runs deep. Classification of this aspect of intellectual property rights at the international level requires the resolution of complex and fundamental conflicts — divergent legal traditions, the appropriate social role of creative authorship and the very logic of internationalization itself.

On balance, it seems that the maintenance of a separate regime for the protection of moral rights, independent of the global trends towards copyright harmonization may produce more negative than positive results. When moral rights do not enjoy a status equal to that of economic rights of authorship, important cultural values fall under attack. Internationalizing moral rights would allow them to keep pace with other aspects of copyright. Their presence in international copyright law could also bring a renewed cultural focus to a sphere of regulation that has become almost exclusively commercial and commodity-driven. Lastly, spreading awareness about copyright issues amongst the legal fraternity will surely go a long way in providing proper and adequate recognition to the moral rights of authors\artists.

If we look in into consequences, it is very well suggested that every coin has 2 sides, there will always lie some imbalance in every situation but on a very global note what’s important is to judge the greater good, if we look into the scenario there is a question for justice, a man’s work is just like an investment for which there should always be legal insurance for protection.

 



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ABOUT THE AUTHOR


Vaishvi Khare

I worked as a legal advisor for Kalyan Jewellers & Carlson Group in the field of commercial contract drafting , recently worked as a junior associate in the field of commercial contract drafting under Mr Pratik Harsh. I hold experience in preparing sales & purchase agreement, Non-disclosure agreement and annually and monthly maintenance agreement and comprehensive maintenance clause agreement . I have been associate coordinator for centre of IPR Studies and an Active member of legal aid society.

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