A. An Old Melee
The elemental difference between Intellectual Property Rights and Property Rights is the presence in the former. The established concept of property rights [tangible] majorly entails the economic right of the owners and considers property as an instrument of earning [by selling, leasing, hiring, etc.] for the owner. Conversely, Intellectual Property [IP] does not only generate economic benefit but also accredits an owner [author] with moral rights [right of paternity and integrity]. Recently, the Delhi High Court [hereinafter “the Court”] in Raj Rewal v Union of India and Ors. [CS(COMM) 3/2018, with IA Nos. 90 and 92 of 2018], essayed to settle the perennial friction between moral rights and economic rights in the case of copyrighted work.
[This case has also been covered by us here].
B. Facts Before the Court
Factum of the case involves a distinguished doyen of architecture named Raj Rewal and the Hall of Nations and the Hall of Industries designed constructed in the year 1972.
The concerned building designed by the architect Raj Rewal and structural designer Mahendra Raj was situated in the Pragati Maidan grounds in New Delhi and was widely regarded as an icon of modernist Indian architecture. The issue befell when in 2016, the Defendant No. 2, Indian Trade Promotion Council (ITPO), mooted a proposal for demolition of Hall of Nations and the Nehru Pavilion in order to build an ‘Integrated Exhibition-cum-Convention Centre’. The plaintiff tried to stop the demolition of the said building, however, all his efforts ended in vain and finally, the complex was demolished. Resultantly, Raj Rewal instituted a suit in the Delhi High Court against the actions of the ITPO, claiming that the demolition had derogated the plaintiff’s ‘special rights’ under Section 57 of the Copyright Act, 1957 and prayed for a mandatory injunction to reinstate the building according to the original plans.
The primary issue before the Court was:
“whether an Architect, as author of artistic work of architecture in the form of a building or structure having an artistic character or design and having a copyright therein, upon the owner of the land on which building is constructed choosing to demolish the said building to construct another building in its place, has a right to restrain the owner from doing so and if the building has been demolished, to demand compensation therefor including by reconstruction of a building in accordance with the architectural drawings or plans by reference to which the building or structure was originally constructed?”
C. Discussion Undertaken by the Court
Differentiating architectural work from other artistic works and highlighting the nature of land as a significant aspect of such artistic work, the Court held that the owner’s right in the property is superior to the author’s moral right in the same property.
(i) Owner-Author Dichotomy
Pertinently, the owner and author are two different entities in the IP arena wherein the author is the one who creates work [IP] and the owner is the one who causes the work to be done, contractual obligation or by way of assignment. As per the statutory norms, the owner has the final say with respect to the property.
In the present case, the plaintiff is the author of artistic work [Section 2(c)(ii)] of architecture in the form of a building or structure having an artistic character or design [Section 2(b)], and thus, had a copyright in the work. However, the ownership in the said property lies with the defendant who caused the work to be done who owns all the economic rights in it.
Notably, ‘a person who caused the work to be done’ suggests the person who actually wanted the work to be done. This expression connotes the contractual relationship between the ‘person who does the work’ i.e. author [who creates a particular IP] and the ‘who causes the work to be done”.
In the present case, the concerned artistic work was created by the Plaintiff [Author] in the course of employment under a contract of service/apprenticeship of the Indian Trade Promotion Council (ITPO) which is a nodal agency of the Government of India. Therefore, ITPO is the first owner of work is ITPO [Section 17(C)]. Appositely, in V.T. Thomas And Ors. vs Malayala Manorama,[i] the Kerala High Court recognized the right of ownership of the Employer in the works which were created by the Author before the termination of employment.
This, however, does not take away from the moral rights of paternity and integrity enumerated under Section 57 which always remains with the author but it does show the transfer of the economic right of the Plaintiff to ITPO.
(ii) Too Common to Impair the Reputation
The Court, in para. 25 of its judgment suggested, that in order to invoke the moral right of integrity, there has to be some loss or denigration to the reputation of the author. However, in the case of demolition or reconstruction buildings or architectural, it is too common to affect the moral right of integrity. In order to justify the precedence of economic rights over moral rights, the nature or origin of the rights has to be taken into account. The Court observed that mere demolition of the work does not impair the reputation of an author because a property does not exist when its demolished. Ergo, people cannot form an opinion about the author [with respect to his skill or property]. Contrastingly, when work is distorted or mutilated, it still remains in existence thus, anyone can frame an opinion on the basis of the modified property. Hence, the right to integrity has not been impinged upon by the defendant.
Notably, the said reasoning can be demurred by asserting that there can be various reasons behind the demolition of a building and one of them is ‘redundancy’ or ‘unworthiness’ of the work. Pertinently, the demolition of a building because ‘redundancy’ or ‘unworthiness’ directly questions the ability and skills of the author thus, denigrates the reputation of the author. Appositely, the impact on the reputation of the author is a subjective debate; and directly connected with the protean nature of humans, hence how people form an opinion about an author is totally a matter of opinion and cannot be ascertained by a particular metric.
However, it is to be observed that demolition of the buildings which were included in a list of 62 iconic buildings [to be declared as heritage sites] as in the present case, highlights the national importance of the work and encumbers the Court with the duty to protect it or at least look at the matter with that perspective.
(iii)Nature of Rights
The court held the right to property is not only a constitutional right [Article 300A] but also a natural right of an owner whereas the intellectual property right is the result of mere statutory creation. Therefore, the prevalence of the former over the latter should not be neglected.
The case somewhere fails to appreciate the cultural value of Intellectual Property which is often cleped as “Cultural rights and intellectual property rights” under Article 27 of Universal Declaration of Human Rights (1948), which states that: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”. appositely, these rights are further accentuated by Article 15 of the International Covenant on Economic, Social and Cultural Rights (1966), Article 19 of the International Covenant on Civil and Political Rights (1966), the Vienna Declaration and Program of Action (WCHR 1993), and other international and regional instruments.
I have few reservations about the holding of the Court because this judgment not only compares the moral rights of the author with the property rights [tangible] of the owner but also inadvertently underscores the hierarchy in tangible and intangible properties. My first reservation in the decision is with the metric used by Court used while comparing the moral rights [rights with intangible asset] and ownership rights [right over building i.e. tangible property]. It is pertinent to note that the copyright of an author includes both his economic rights and moral rights which boils down to only moral rights after the assignment of the work or when the work is caused to be done by some other person. Considering this systemization of rights, it becomes imperative to ask “how do we analogize the moral rights with other property rights when the fulcrum of both kinds of rights is the same property”.
Furthermore, while analysing the facts, the Court held that defendants have a property right under Article 300A which is also a human right whereas the copyright is a statutory right, ergo the former should be given importance. However, it is pertinent to note Article 17 of Universal Declaration of Human Rights [UDHR] which makes the property a human right does not explicitly mention tangible or intangible property; hence, it is will be an amiss to exclude it from the domain of Human rights and by considering IP merely as a statutory right. Thus, this seems to be a fabricated classification of IPs as per national and international spheres
My next problem with the decision stems from the inattention to the value of IP as a cultural property. The primordial aspect of protecting Intellectual property has always been ‘incentivization’ which not only impels people to create their own work [IP] but also ensures the growth of the society. These work [IPs] has always been symbolized with the development of society and regarded as the cultural property of people. Astonishingly, this aspect was not at all mooted in the case and the entire discussion remained centripetal to moral rights and ownership rights.
Howbeit, I appreciate the decision because of its realistic implications as it removed the unwanted friction between the moral rights of artists and the ownership rights of the owners. In the absence of this decision, it would be difficult for the owners to construct a property as per their volition. Especially, for the government, it would have been very difficult to construct a new building after the demolition of the existing building. Such a scenario would not only wreak havoc on the government but also arise contractual calamities in the case of architectural works. Interestingly, the Court examined the bimodal aspects of morality, one from the side of the author and other from the side of the owner and finally favor the owner’s morality which is larger and wider than that of the author.
Conclusion: An Unwanted Hierarchy
Surprisingly, the present case, on one hand, settles the wrangle between two categories of rights and on the other hand, it obfuscates the situation by forming an undesired hierarchy of rights where economic rights take precedence over moral rights. A few other questions arise like was this hierarchy actually needed? Will hierarchy not belittle the significance of the moral rights of authors? What are the repercussions of such a hierarchy of rights in the future of architectural works? Will the contractual obligations between two parties overshadow the fundamental tenets of IP law? Although, the Court attempted to differentiate the present case from other cases involving moral rights, yet it poses questions on the viability of Mannu Bhandari vs Kala Vikas Pictures Pvt. Ltd.,[ii] Amar Nath Sehgal vs Union Of India,[iii] and other such cases by portraying discrimination between architectural work and other artistic works.
End notes:
[i] V.T. Thomas And Ors. vs Malayala Manorama Co. Ltd. AIR 1989 KER 49 (India).
[ii] Mannu Bhandari vs Kala Vikas Pictures Pvt. Ltd. And Ors., AIR 1987 Delhi 13.
[iii] Amar Nath Sehgal vs Union Of India (UOI) And Anr., 117 (2005) DLT 717.
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