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.

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.

Any room for Inspirational Plagiarism?

I think aloud as I listen to one of my favourite George Harrison/The Beatles numbers “My Sweet Lord” - I am reminded of the plagiarism suit that went along. Someone as great as Harrison was not excused, although he admitted that he never had “He’s so fine” on his mind, while composing My Sweet Lord. More about the row here.. My personal opinion, is that the judgment was a bit harsh.

And then, as much as a Bollywood loyalist that I am, I often wonder, can “inspiration” be really an excuse to copy music??? Although I hate to admit, the fact is that I often find myself listening to new songs, and I know that the riffs, chords, et al. are a pick up from some old song. The first one was as a very young child, listening to the inspirational version of “The Final Countdown” and the most recent one being last night - a Boney M rip off..

As I think of it, since copyright is apparently a pan-jurisdiction right, thanks to the Berne convention and non-requirement of registration, National Rights should be applicable to enforce such rights violated out of such “inspiration”.

Assuming a plausible situation, where an international artist came about to enforce rights against an act of “Inspiration” in India, “fair use” would be an obvious defence taken up in the issue. However, if we carefully look at the Act, S. 52 dealing on Fair use, titled “Certain acts not to be infringement of copyright”, covers Parody and not “inspiration”. That apart, whether rights have been violated to the extent of being “infringement”, is one meant to be decided on facts.

That having been said, it appears that irrespective of a case for infringement having been made out or not, would violation of moral rights stand a chance? I believe it would! Section 57 under the Copyright Act, 1957, reads:

“Author' s special rights. Independently of the author' s copyright, and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right to claim the authorship of the work as well as the right to restrain, or claim damages in respect of,-

(a) any distortion, mutilation or other modification of the said work; or

(b) any other action in relation to the said work which would be prejudicial to his honour or reputation…”

For a jurisdiction that in fact does give prominent weight to the violation of moral rights, I wonder why we haven’t had many cases in Music covering such “inspirational plagiarism” as I would like to call.

Though the idea-expression dichotomy would prevail as a premise, yet these cases should find a favourable verdict for copyright owners. Knowing the caliber and musical inclination that our judges have, in making line by line comparisons, the cases shouldn’t be a difficult slide.

On a funny note, a friend of mine and I discussed how one particular "original song" had been converted to a Devotional number, by replacing the lyrics. We discovered this on our school trip in Grade 4. And he asked "What would the Divine Gods do? Which Court would they approach?" I but of course had no answer, however this is definitely a point to consider!