Waiver of Moral Rights: Resolving Dilemma in the Case of Performers and Authors
Moral rights generally provide the basic social values concerning the work of the author, artist and performers. These rights put more emphasis on granting special status to the authors and performers rather than limiting their work to earn the means for livelihood. Considering the Indian scenario, these moral rights are enshrined under Section 38-B and Section 57 of the Copyright Act, 1957 which pertains to performers and authors respectively. Moral rights of both the authors and performers specifically contains two rights i.e. paternity and integrity rights. The paternity right w.r.t performance or the work is the right of the performer/author to be identified as performer/author over his performance or work respectively and have it attributed to him. While on the other side, the integrity rights pertains to the rights of the performer/author to restrain or claim damages at times when their performance or work has been distorted, mutilated or modified in a way that will cause harm to their honor and reputation.
It is to be observed that Section 57 of the Copyright Act which provides moral rights to the authors for their work includes authors for other works also such as literary, dramatic, musical and artistic works, cinematograph films, and sound recordings.[i] Thus, Section 57 does not restrict itself only to the literary works of the author but also enlarges it scope to other kinds of work as previously mentioned, thereby making moral rights available in these works also. It has become a general practice that the authors/performers are generally forced to waive their moral rights through the signing of the agreement during the assignment of rights w.r.t their works. This type of agreement contains a clause namely: Assignment of Intellectual Property and it specifically mentions that the author hereby waives all the moral rights in respect of intellectual property generated in the agreement.
Considering the current Indian scenario, it can be easily observed that there is no concrete jurisprudence developed w.r.t whether waiver can be possible or not.
Current Scenario of Law: Whether Waiver of Moral Rights Possible?
Some of the Indian and foreign jurisdictional courts have ruled that moral rights generally can be perceived as an inalienable right, which can be recognized as rights retained by the persons even after the assignment and transfer took place.[ii] But in many jurisdictions, the waiver is possible as it is coming out of the voluntary consent of the author.[iii]
In India, the Delhi High Court has firstly dealt with the issue of moral rights and observed that the moral rights are reserved even when the assignment of the copyright was done and no agreement of the assignment of copyright can override the effect of moral rights enshrined under Section 57 of the Copyright Act, 1957.[iv]Similarly in another case, the Delhi High Court ruled that the right under Section 57 will also comprise the need on the part of the state and public to protect the integrity of the work of the author.[v]
Lastly, the Delhi High Court in 2016 has held that when a director of the cinematographic work wants to waive his right of association of name with the film, then he can waive his right but such relinquishment should be voluntary and not be against the public policy.[vi] Here, it is to be observed that this case has dealt with the issue w.r.t. waiver of moral rights by the director and not the producer who is the actual author or owner of the cinematographic work. Thus, this case also does not enlighten the grey area of law dealing with the waiving issue of moral rights in Indian scenario.
Allowing and Disallowing Waiver: Two Way Analysis Approach
It can be contended on the side of the assignee that the as per Section 21 of the Copyright Act, 1957 which enshrines the fact that author can waive all or any of his right in the copyright and thus it comprises the provisions of moral rights enumerated under Section 57 and 38-B of the Copyright Act, 1957. Further, the waiver of moral rights should be in writing and must be within the reasonable standard as perceived and should not be against public policy.[vii] But this particular argument can be countered by using the phrases of the provisions pertaining to moral rights of the Copyright Act, 1957 which uses the phrase “Independently of the author’s copyright” and “independently of his right after assignment”, thereby, making moral rights outside the purview of Copyright.[viii] Relinquishment under Section 21 deals with the Right of author to relinquish copyright but Section 57 and 38-B of the Copyright Act delimits the horizons of moral rights so as to not fall under the scope of copyright. Thus, Section 21 cannot be applied to waiver of moral rights as moral rights are outside the purview of the Copyright. The assignor can also argue that as the moral rights are also emphasized indirectly under Universal Declaration of Human Rights which deals with protection of the moral interest and thus moral rights in a way equivalent to fundamental and basic rights.
Further, it can also be argued that freedom to contract and voluntary agreements cannot be vitiated on grounds of raising fundamental rights and some high standards should be used such as public policy to hinder the private agreement.[ix]
Thus, the overall picture of waiver has to be viewed in terms of public policy doctrine which is essentially used by different jurisdictions also. Public Policy doctrine enshrines the fact that there is a need to protect the rights of the weaker sections of the society by equalizing the power through balancing the bargaining power between the weaker sections and the money makers of the society.[x] The judgment in Amar Nath Sehgal has to be considered which concretely lays out the need to protect the rights of the authors especially the moral rights. Therefore, the moral rights can be equated with the public policy doctrine and any contract or agreement made in violation of public policy should be rendered unenforceable.[xi]
Furthermore, there should be no bar on the waiver of moral rights pertaining to future works as no personality of the author/performer is developed at the time of the formation of the contract and thus no harm can be caused to the undeveloped personality or the repute of the author. It is a general practice in the current functioning of the copyright law that authors/performers are paid more and high amount of fees for surrendering and waiving more and more rights.[xii] This high amount can be used for generating other forms of work and is one of the basic rights under laissez-faire. It should also be seen that the authors/performers entering into the agreement of waiver are giving their consent out of free will and with full conscience, thus, these types of agreements should not be disallowed in the economy like India which is a most promising and a developing economy in the world. If any author or a performer does not want to enforce such types of waiver then there are other alternatives available for him in terms of rendering the contract unenforceable on account of undue influence, unconscionability and fraud caused by the assignee.[xiii]
It can be contended from the side of the assignor that the waiver of moral rights amounts economic duress and such harassment on the part of assignee is in the wrong faith of the laws of the land of India.[xiv] Here, due to inequivalent bargaining power between the money maker i.e. assignee and low worth of assignor forces the assignor to surrender his rights and waive moral rights in favour of the assignee which is in itself tantamount to commercial exploitation.
Further, it can be traced that if any author makes the waiver unenforceable by arguing that it is against the public policy then the assignee would be left with no option but to limit himself to the damages suffered by him. This will cause unjust enrichment on the part of the assignor whereby harm will be caused to the assignee. Thus, balancing out equitable remedies should be the only option left to the court for rendering both sides in a win-win situation.
It can also be argued that waiving of the moral rights of the author hinders the rights of the society and other users or licensees as the work of the author when reaches to its zenith inhibits the community’s cultural interest and thus by derogating the integrity rights attached to the work will vitiate the community interest in the works of the author. Further, it can be perceived that the authors may at times give licenses to other persons and not to a single person and waiving the moral rights in favour of a single person may violate the rights of the other users attached with the works of the author.[xv]
It is not wrong to conclude that Indian legislature and judiciary has so far failed to deal with the issue regarding the waiver of moral rights as question of waiver is not yet answered by the laws, provisions and judgments of the courts. From the reading of Section 38-B and Section 57 of the Copyright Act, 1957, it can be inferred that there is no prohibition on waiver of moral rights but on other hand it can also be argued that the provisions and judgments specially in Amar Nath Sehgal does not specifically allows the waiver of moral rights. But the moot question prevails as to how to deal with the commercial exploitation as a tool used in general practice of waiver through enclosure of clause dealing with the waiver and how it is to be mitigated. To redefine the boundaries, the judiciary should use the judicial activism as a tool which it has previously used in the catena of judgments like Vishakha vs State of Rajasthan,[xvi] to interpret the laws of India in concurrence with international practice where the domestic law is insufficient to answer the grey area of law.
[i]Mannu Bhandari v Kala Vikas Pictures Ltd, AIR 1987 Del 13. [ii]Abhinay Kapoor, Moral Right: A Fortification of Delicate Interest Under Copyright, Madras Law Journal, (2011) 2 MLJ 28. [iii]Section 87, Copyright Design and Patent Act, 1988. [iv] Supra note 1. [v] Amar Nath Sehgal v. Union of India, 2005 (30) PTC 253 Del. [vi]Sartaj Singh Pannu vs v Gurbani Media Pvt Ltd 2015 (63) PTC 590 Del. [vii] Nikhil Agarwal and Vinayak Ojha, Moral Rights: International Framework and Indian Approach, Christ University Law Journal, Vol. 6, No. 1 (2017), available at: https://doi.org/10.12728/culj.10.1. [viii]Section 38-B and 57 of the Copyright Act, 1957. [ix]Zoroastrian Coop. Housing Society Ltd. v. District Registrar, (2005) 5 SCC 632. [x] Murlidhar Aggarwal v State of Uttar Pradesh, (1974) 2 SCR 472. [xi] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. [xii]Patrick Masiyakurima, The Trouble with Moral Rights, The Modern Law Review, Vol. 68, No. 3 available at: https://www.jstor.org/stable/3699169. [xiii]Section 19 of the Indian Contract Act, 1872. [xiv] National Insurance Co. Ltd vs Opera Clothing, 2015 SCC OnLine Bom 552. [xv]Henry Hansmann and Marina Santilli, Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analysis, The Journal of Legal Studies, Vol. 26, No. 1, 1997, available at: https://www.jstor.org/stable/10.1086/467990. [xvi]Vishakha vs State of Rajasthan AIR 1997 SC 3011.
Author Details: Keshav Khandelwal (4th year student at National Law University, Jodhpur)