Wednesday, March 6, 2013

Perpetuity in Moral Rights- More trouble than it's worth?

The 2012 amendment to the Copyright Act has brought with it several positive changes to copyright law in India, among which, is the amendment to Section 57 of the Act. In this post, I discuss the possible implications of granting moral rights in perpetuity, as envisaged in Section 57 of the Act, particularly the right to integrity provided for in Section 57(1)(b).

Indian law on the term of moral rights has shifted back and forth since the introduction of the Act. Post the amendment of 1994, there was no stipulation on the term of copyright but an act would amount to infringement of the author's right to integrity only if "done before the expiration of the copyright". This limitation in Section 57 appears to have been done away with in the 2012 amendment to the Act, thereby providing for moral rights in perpetuity.

Though moral rights are independent from economic rights in a work, moral rights extinguish upon the expiry of the copyright term in most jurisdictions. Providing for perpetual moral rights, forbids anyone, at anytime from claiming authorship or distorting or modifying any piece of work by the author. 

The debate, of course, is limited to the exercise of the author's right to integrity and does not extend to the paternity right, which should indisputably be entitled to perpetual protection. Its rationale seems to stem from the fact that moral rights are associated with the author's work as much as with the author himself. 

Distortion, mutilation or modification of the work of any kind, thus, would harm the reputation of the author equally even upon his death and perhaps more so given that the author is then unable to defend the integrity of his work. Protection of the right in perpetuity, however seems to extend this logic further to protect the author's personality as embodied in his work as also to protect societal interest in preserving works of authors by preventing unapproved use beyond the term of copyright.

The amendment, lauded as a step forward for protection of authors, prevents cases where works of authors in the public domain have been subject to modifications and grave distortions. Under the law as it existed prior to the 2012 amendment, the heirs of authors of such works were incapable of instituting an action for violation of moral rights since such rights of the author would have expired with the expiration of the term of the copyright in the work. Post the 2012 amendment, it now appears possible for heirs of an author to bring actions after the expiry of the copyright in the work.

The perquisites the amendment brings ought be weighed against the possibilities of its misuse.  The presumption that heirs are well versed in the author’s works so as to be capable of protecting his right to integrity is rebuttable. Additionally, it is also at odds with a subjective approach in determining the violation of the integrity right, given its close relationship with the personality of the author.

Providing rights in perpetuity should therefore not be sans safeguards, as Section 57 stands today. A feasible solution to the problem lies in finding a middle ground that not only ensures the protection of the author's reputation and honour even after his works enter the public domain but also prevents mischief by heirs by protecting instances of fair dealing.

Notwithstanding this problem, a separate area of enquiry is with regard to how the infringement of the right of integrity would be determined and the standard of proof in such claims. A wholly objective test based on a standard of reasonableness, as employed in most common law countries, would render the entire theoretical basis of the doctrine futile. In these jurisdictions, the action complained of is viewed from the point of view of a ‘reasonable person’ to determine whether the integrity right has been violated. 

On the contrary, a subjective test, as employed under French law, as well as recognized by the court in the epoch-making Amarnath Sehgal judgment would perhaps be closer to giving effect to the jurisprudential basis of the doctrine. The issue assumes relevance in the context of perpetuity where it would be absurd to apply a subjective test while the author is no longer alive. The subjective intent of legal heirs might not always coincide with what the author would have done in such a situation.

The problem thus arises when the law not only needs to provide for protection of the integrity in the author’s work even after his death but also needs to ensure its protection without misuse by the author’s heirs. To cite an example, Stephen Joyce, the grandson of James Joyce has strongly been enforcing his grandfather’s moral rights by threatening to sue critics who he is in disagreement with. 

The Newyorker has an excellent piece on the issue, which aptly illustrates how moral rights in perpetuity, may just be more trouble than it’s worth. The only cogent solution seems to be to decide on a case-by-case basis weighing interests from all quarters though this is a seemingly difficult task. Readers are invited to share their thoughts on the issue.

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