Monday, April 1, 2013

Moral Rights and Fair Use - A mismatched pair?

If a person decides to make a parody of a famous painting, like the drawing of a mustache on the Monalisa for instance, Da Vinci, if alive, would have reacted in one of the two following ways: Accepted it as parody and had a good laugh or viewed the drawing of the mustache as damaging to his honour and reputation and brought suit for the violation of his right to integrity in the painting.

In case Da Vinci feels like the latter, to my mind, two thought provoking questions arise. Firstly, whether parody violates an artist’s right to integrity? Secondly, assuming it does, whether the parodist can invoke the fair use defence in such a case.

Parody, by its very nature, is intended to be comical or ridiculing and thus seems to plainly fall within the ambit of “distortion or mutilation of the work”. However, the determination of whether such distortion, mutilation or modification harms the author’s honour and reputation is (or at least ought to be) an entirely subjective one. If the author views the parody to be harmful to his honour and reputation, I believe that there is no reason to provide for an exception in such cases. That, to my mind, would make the grant of the right to integrity itself, redundant.

To answer the second question, it is perhaps necessary to first examine whether the fair use defence applies only when copyright has been infringed or if it can also be used to carve out exceptions in the enforcement of neighboring rights such as the right to integrity. To begin with, the philosophical foundations of moral rights and fair use are entirely different from each other. While the objective of fair use, much like the purpose of copyright itself, is to promote the creation of new works of authorship, moral rights seek to protect the author’s personality by preserving the work and securing respect for the author. The fair use defence should thus limit itself to cases of copyright infringement and not extend to violation of moral rights as they operate in two very different realms.

The balance the law needs to strike, is thus between the protection of the author’s work (and as a result his honour and reputation) and the interests of the parodist. In my opinion, moral rights far outweigh the utilitarian purposes of the fair use doctrine given its genesis in the very personality of the author to whom the work first belongs.

A look at section 57 of the Indian Copyright Act (which, post the 2012 amendment provides for perpetuity in moral rights) also makes it amply clear that moral rights enjoy a superior position given that they exist “independent of copyright in a work”. The mere fact that they can be enforced even after the expiration of copyright reflects that moral rights are placed at a higher pedestal when compared to economic rights. The fair use defence therefore, ought not to be applicable to moral rights.

Though carving out an exception for parody is wholeheartedly supported, a line should be drawn where the parody, in the view of the author, violates his right to integrity.

Any comments are as always, welcome.

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