MORAL RIGHTS IN WORKS OF ART- DEFINING THE SCOPE IN THE CONTEXT OF RAJ REWAL v. UOI

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The Delhi HC, recently in the case of Raj Rewal v. UOI, went on to define the scope of Moral Rights under Section 57 of the Copyright Act in relation to the superset of Works of Art in an overarching manner and specifically with respect to subset of: Works of Architecture. This article takes in a step by step analysis of all the contended issues and its relationship with respect to the statutory provisions and the prevailing precedents making up the status quo of Moral Rights.

THE CONCEPT OF MORAL RIGHTS

Before dwelling into the facts of the case, I would like to highlight the overarching concept of Moral Rights and bring in a comparative analysis as well to discuss the prevailing international norms surrounding this concept.

The origin of Moral Rights can be traced to the French Concept of Droit D’ Auteur which is premised on the authors having a unique relationship with his work wherein they infuse within the work, their own personality. Hence, the protection which was sought to be provided by virtue of this principle was to the author’s own integrity embedded in the work, by virtue of its creation. Moral rights have been argued to be chronologically and systematically primordial and the two fundamental traits are perpetuity and inalienability (however in the United States, there is a specific provision allowing waiver by virtue of a contract). These rights are majorly concerned with the Author’s associated honor and reputation in relation to the work, rather than the commercial value it tends to generate. They encompass within themselves 2 major rights which are i) Right to Paternity and ii) Right to Integrity. Paternity rights deal with the concept of attribution and prominent identification of the author in relation to the work, whenever it is reproduced or publicly performed or disseminated in any medium. Integrity Rights on the other hand, very importantly deal with the modification, or any derogatory treatment of the work for example defacement alteration, destruction (without offering it to the artist firstly) (*currently under contention*), distortion, mutilation or other modification which would be prejudicial to the author’s honor or reputation. The basic rationale is protection of the authors personality which is embedded in the work. In the French dominion specifically, two more rights in the form of right to disclosure, i.e. the right to publicize or disclose the existence of the work is with the author, and the right to recall or withdraw, i.e. the right to withdraw from circulation and erase its existence, are provided to the author. This is why the French moral rights regime is considered to be the strongest one.

Moral Rights can be found enshrined even in the Berne Convention wherein under Article 6bis, it is stated under subsection (1) that, independent of the Author’s economic rights, the author shall have right to claim authorship of the work and to object to any distortion, mutilation, modification, or other derogatory action, in relation to the said work, which would be prejudicial to his/her reputation.

STATUTORY PRESCRIPTIONS

In the United States, interestingly, moral rights exist only for the Visual Artists and under VARA which applies only to works of art. In the Indian domain however, Moral rights has specifically been codified under the Act in section 57, which clarifies the right of the author, independent of the economic rights, to claim authorship in the work (paternity rights) and to restrain or claim damages in respect to any distortion, mutilation, modification or any other act in relation to this, which is prejudicial to his honor or reputation. The Explanation clause to this provision provides that a “a failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of moral rights.”

It is very interesting to note that the phrase “any other act” must be read ejusdem generis to acts like distortion, mutilation etc, which creates the overarching class of causing harm to reputation or honor of the author. Hence any act, which causes an element of harm to the reputation of the author with respect to the work created, if not within fair dealing, comes under the broad and inclusive scope of this provision. Distortion and mutilation are merely indicative and cannot be read restrictively. They are merely species of the overarching class of harm to the author’s reputation and are mere examples as to how it can be done. These are not exhaustive from an academic standpoint.  Further, as far as the explanation is concerned, it cannot be read over broadly to imply “failure to display” to include post display destruction. Once the work is displayed, keeping the satisfaction element aside, any harm caused by virtue of which the reputation of the author is affected negatively, an action under section 57 is applicable and this explanation ceases to apply. It is applicable only in conditions when the work has not been displayed in the first place and cannot be interpreted to include destruction and removal of the work post it.

LANDMARK CASE LAW – AMARNATH SEHGAL V. UOI

Coming to Judicial Precedents, in India, the landmark judgment in relation to the concept of moral rights was rendered by the Delhi High Court in the case of Amarnath Sehgal v. Union of India. It involved certain murals which were developed by the Plaintiff on a commission by the Government of India. The Mural earned widespread acclaim and attracted dignitaries and art aficionados from around the world. But eventually, due to the renovation of the Vigyan Bhavan building, wherein the murals were originally placed, these were ripped off from the walls and kept in a storage elsewhere. The plaintiff, who was distressed by such destruction and dismemberment of the homogenous blend of the pieces of each title in the mosaic, brought in an action against the Union of India. He specifically claimed that such an act amounted to an extreme form of mutilation and was prejudicial to his honor and reputation as the esteemed mural was reduced merely to junk, which was according to the plaintiff, a body blow to his esteem. The court decided in favor of the plaintiff and went on to the hold the rights of paternity and integrity to be essential elements of the moral rights jurisprudence. They further held that the destruction of the mural was violative of the plaintiff’s moral right to integrity, irrespective of the copyright vesting in favor of the defendant.

I will now be reproducing relevant arguments and parts of the Amarnath Sehgal decision which are essential for the interpretation of the case of Raj Rewal, before getting into its facts. In the case of Amarnath Sehgal, it was argued by the defendant UOI that, once the work is destroyed, it no longer exists and cannot therefore be viewed by anyone, which nullifies the possibility of prejudice to the authors reputation. (NARROW VIEW). On the other hand, it was argued by Senior IP lawyer, Mr. Pravin Anand, for the plaintiff that destruction of work can prejudice an author’s reputation by reducing his creative corpus and artist profile. Deletion and destruction were argued to also be a part of the concept of mutilation, or rather were argued to be an extreme form of mutilation, which renders the work imperfect or insufficient to be present.(WIDER VIEW) It was argued that physical destruction or loss of IP has far reaching social consequences as the knowledge grown with it is also lost. Keeping these arguments as the base, it was held by the bench that a wider interpretation is to be given to the concept of moral rights and section 57(1) to include within its ambit, the concept of destruction since, by reducing the volume of artists creative corpus, it directly prejudices his reputation prevalent amongst the masses and his work profile, which is actionable in this section applying the Ejusdem Generis rule as discussed above.

THE RAJ REWAL CASE

Coming to the core issue at hand, I will first bring into light the facts of the aforementioned case. The Hall of Nations and Hall of Industries (in the image) were designed by the plaintiff and constructed in the year 1972 for the purpose of promoting commercial activities. This design was a unique one and represented the national prowess in structural engineering and architecture. It gained the unique distinction of being the first “Large Span Concrete Structure” in the world. This work was applauded by those regularly involved in the field of architecture and were included in the list of 62 iconic buildings. The defendant, Indian Trade Promotion Council (ITPO) brought in a proposal for demolition of this building as a part of re development of the Pragati Maidan complex. Thereafter, the buildings were demolished and reduced to rubble except the foundation thereof. A suit seeking mandatory injunction against UOI and the ITPO to compensate the plaintiff by recreating the same work of architecture in the same location or another equally prominent location was instituted.  Various sections of the Copyright Act were analyzed in this regard and especially, section 2(b) and 2(c) which define a work of architecture, as any building or structure having an artistic character or design or any model for such building or structure, and an artistic work as including a work of architecture under subsection (ii), respectively. Further, the definition of author under Section 2(d) subsection (iii) was looked at, which states that the author of an artistic work (other than a photograph) is the artist. This clarifies that the author of the building, which was designed by the plaintiff, would be the artist that is the plaintiff himself according to section 14 (c) (B). Even though it may be owned by the landowner, for moral rights purposes, the authorship remains with the original author and cannot be waived, according to the statutory provisions of the Indian Copyright Act.

The senior counsel for the ITPO resorted to the NARROW view of interpretation in his arguments and argued that Section 57 is not concerned with the total destruction of the work. It was argued that once the work is totally removed and is not in the public view, the question of the same affecting author’s right could not arise, as mutilate meant something less than total destruction, i.e. deprivation of an essential part, which jeopardizes the reputation of the author. The plaintiff on the other hand resorted to the WIDER view of interpretation and argued that such demolition of the acclaimed work is prejudicial to the honor and reputation of the plaintiff.

The defendant, differentiating between a sculpture and a work of architecture argued that the case of Amarnath Sehgal and the wider view proposed therein would not be applicable to the case at hand.

The court, while analyzing these issues, when on to draw a very critical differentiation between work of architecture and other works of art. The basic premise of this differentiation rested on the ground of medium of fixation being land in the primary case which has a value of its own, unlike other works of art. The value of land appreciates as it is limited, and such land is in itself regulated by certain land related property legislations. It was very importantly recognized by the court that the Copyright Act must be read in harmony, keeping in mind the land legislations, which is not a statutory right but a constitutional/ human right (citing Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals, (2007) 8 SCC 705). The court recognized importantly that a copyright cannot triumph over land rights as “any legislation which has the effect of depriving a person of his land without his consent must be strictly construed  and owner of a property cannot be refrained from dealing with the property in the way he likes”. Hence, no law, be it the Copyright or any other Act, unless substantively provided can exclude the right to enjoy one’s own land under Article 300- A of the Constitution.

This is an imperative argument brought in by the court supporting the defendant’s contentions and leading to the adequate conclusion that section 57 won’t be applicable in the pertinent case at hand. It has rightly been concluded by the court that the special rights of the author of an architectural work cannot be interpreted as being a restriction on the right to property of the owner of the land and the building, entitling the author to restrain the owner of the land  in which the architectural work has been expressed. This is on the sound rationale of land being scarce and land rights being of a constitutional nature which always triumph over statutory rights in cases of conflict.

A consultative process, as in Australia under Copyright Regulation 195AT (3A)), in good faith, however, is recommended to avoid completely jeopardizing the rights of the author.

The problematic part of the judgment can be seen under Para 24 and 25, wherein the court overarchingly, i.e. without restricting it to works of architecture, has gone on to hold the NARROW view to be the correct view, completely contrasting with the rationale in Amarnath Sehgal. The court held that there is a difference between work itself and the embodiments of the work and making the work disappear in its entirety cannot be prejudicial to the honor and reputation as no imperfections can be found, seen, heard or felt. The court has gone on to say that destruction does not have a prejudicial impact on the honor and reputation as “I like or dislike only a building/structure which I see. What I don’t see I don’t judge.” This in my opinion is a very unrealistic analysis of the whole concept of destruction as it doesn’t account for the fact that the work did exist at one point and is an element in factual history known to the public. The court has completely ignored the argument of reduction of the “corpus of work” of the artist, which is definitely prejudicial to his reputation and creation of knowledge in the society. The realistic implication of removal and destruction, that is the work being a forefront of discussion on questions like “why was it removed”, amongst the public who knew of its existence as a matter of fact leading to certain presumptions prejudicial to the author’s reputation, has completely been ignored by the court, making the ruling unsound in the context outside of works of architecture.  The overarching applicability, hence, is definitely questionable.

DESTRUCTION AND COMPLETE REMOVAL OF WORK UNDER MORAL RIGHT TO INTEGRITY

It is important to discuss the view of various commentators around the world, on this issue of whether destruction, and complete removal of the work, resulting in reduction of the creative corpus of the author, is in fact under the purview of section 57 or not, and does it harm the honor and reputation of the author, making it actionable under section 57. It has been argued by leading commentator Stephen Ladas, in his treatise on International Copyright Law, that moral rights should be extended to authors for the destruction of art work because, “the maintenance and preservation of a work of art is invested with the public interest in culture and the development of the arts. (Stephen P. Ladas, 1 The International Protection of Literary and Artistic property (1938)) It has also been argued by various experts in the field of Intellectual property law that the destruction of a work without the author’s consent removes something from the cultural heritage of the society and moral rights, in addition to protecting the personality, seeks to protect the cultural heritage of the nation due to the public’s interest in the preservation of literature, music, drama and art. (Mary A. Lee, Comment, Moral Rights Doctrine: Protection of the Artist’s Interest in His Creation After Sale, 2 ALA. L. REV. 267, 272 (1950); Sidney A. Diamond, Legal Protection for the “Moral Rights” of Authors and Other Creators, 68 TRADEMARK REP. 244, 258 (1978)) There is a definite loss to the society upon destruction of artistic works and hence the most prominent argument which comes for inclusion of destruction under moral rights is grounded on the “Preservation model”. Highly cited French author William F. Patry, has interestingly argued that protecting an artist’s work from destruction soundly supports a personality-based integrity right, positing destruction as the end point of disrespect on a continuum with mutilation. It shows the utmost contempt of the artists honour and reputation. (5 William F. Patry, Patry on Copyright § 16:24 (2012). Further this cannot be restricted to only those situations wherein shame or embarrassment is a causal effect, and compete destruction does prominently result in harm to the honour and reputation of the artist. Further, an interesting discourse on the expressive value of destruction has been provided by Lior Jacob Strahilevitz in his article, The Right to Destroy (114 YALE L.J. 781, 824-30 (2005)). He goes on to argue that destruction of valuable property has a substantial expressive component wherein humans are intrigued psychologically when someone destroys a valuable commodity and it definitely draws their attention. Tearing down or obliterating a statute sends a powerful message that the destroyer disagrees with the symbolic expression manifested in the work, which shapes the opinion of the public and consequently affecting the honour and reputation of the artist. To accommodate this, in the VARA, in the US, destruction of visual art that is of a “recognized stature” during an artist’s lifetime is prohibited. VARA thus recognizes that when an artist creates an important work of art, she generally intends to make a lasting contribution to aesthetic discourse. During the artist’s life, the work can be criticized or parodied, but it cannot be destroyed unless the artist consents.

The question that arises here though is where to draw the line? If there is a work on the land of someone that has grown obsolete and some new technology has come into place or a new architectural design which is more useful. How can moral rights be used to stop such utility based development? Hence, it has been suggested that the applicability of Moral rights must be restricted to objects that are typically acquired for their aesthetic rather than utilitarian value and are less likely to require modification. (Henry Hansmann & Marina Santilli, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, 26 J. LEGAL STUD. 95, 110 (1997)) This is a valid reason upon which, the applicability of this judgment can be restricted to architectural works which of utility purpose (remembering the purpose of commercial use in the Raj Rewal case), fixed to land. Applicability of this judgment to an overarching broad spectrum of artistic works will be curbing the applicability of this right to integrity in the aesthetic domain as well, which goes against the foundational principles of Moral Rights.

Hence, to conclude, it is argued on my behalf, that the conclusion of the judgment is completely sound, however the applicability of the principle enunciated must restricted to works of utility and architectural works fixed to land, owned by others. An overarching application is in dissonance with the rationale provided in the case of Amarnath Sehgal and endorses the NARROW interpretation of section 57 which is unwarranted for and devoids the artist of their right to integrity associated with the work.

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