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The Application of Moral Rights in the Music Industry

The Application of Moral Rights in the Music Industry

Introduction

The “moral rights” with respect to the copyright law in India deals with protecting those non-commercial, either personal, the divine interest of in work for the author. These rights are essential and significant for developing countries like India in making an immense contribution towards developing the culture. The moral rights act as and counterbalance against the TRIPS agreement, which in turn is acting as a damaging agent to the development and also to the culture.

Also, moral rights have much favored developing countries for a very long period; countries have also tried a lot to include the concept of authors’ moral rights very favorably in the legislation dealing with copyright laws to safeguard the Artist’s pride and prestige. As per the TRIPS agreement, the moral rights that protect the non-commercial interest of the author in his work have been excluded.

Amarnath Sehgal v. Union of India and Anr was the first case involving the issue of moral rights in India. The lawsuit was first filed on 29th May 1992 before Jaspal Singh, J., wherein an interim injunction was awarded in favor of the petitioner. The case was then prolonged for 13 years before a single bench judgment by Pradeep Nandrajog J. conclusively disposed of the matter on 21st February 2005. The argument is regarded among the legal luminaries because it laid down the foundation stone of the jurisprudence of moral rights in India. The case was filed when there was no real clarity on the ambit and scope of moral rights, that is to say, no precedents. The Delhi High Court, thus, exercised its discretion and broadened the ambit of moral rights existing under Section 57 of the Indian Copyright Act 1957, thereby setting a landmark precedent.

Moral rights apply to literary, dramatic, musical or artistic works and films. This includes music, lyrics, original album artwork, and music videos. They do not apply in the case of sound recordings. While an artist can have moral rights for the music and lyrics to a song, no moral rights can be exercised in any recording of that same song. Moral rights do not apply in all circumstances.
For example, where you create a work as an employee, your employer will generally own the copyright. In this scenario, you will only benefit from limited moral rights. This may be relevant to an artist who has, for example, signed a band agreement where the Artist provides services to the band’s company or partnership as an employee.

Moral rights are primarily codified in the Berne Convention for the Protection of Literary and Artistic Works. Though they existed in France and Germany before then, The Berne Convention is the primary tool that has spread them worldwide.

Moral rights provide a set of reasons that are separate from the economic rights granted by copyright law. They include:

  1. The Right of Attribution:
    The creator’s power to be credited when a work is copied or otherwise used.
  2. The Right of Anonymity (or Pseudonymity):
    The right of the creator to not be attributed or assigned under a different name if they chose.
  3. The Right of Integrity:
    The power to prevent uses of the work that might be offensive to the creator or harmful to their reputation.

In most countries, these rights are taken for granted and are simply a part of the Artist’s rights. However, there are differences in how the rights are applied. In some countries, the reasons are infinite and will last into perpetuity. In others, the rights expire at the same time as economic rights. In some applications, moral rights cannot be waived by a contract while others can. Finally, some countries say that the right must be proactively asserted while most do not have such a requirement

But regardless of the exact implementation, in all countries where moral rights exist, they are a powerful tool that enables creators to protect their work, build their reputation and further their careers.

If we talk about Moral Rights in the music industry, then the benefits are:

  • Moral rights grant the Artist or composer the right always to be attributed for their work (or to distance themselves from work if they desire).
  • Moral rights give them the right to object to uses that they deem offensive.

The importance of the first right is obvious. Many musicians, especially session musicians, are not credited for their time and creativity. Moral rights ensure that such musicians and composers have the right to be credited and receive the attribution they deserve. This helps them build careers by letting artists develop a fully-documented resume of their work.

The second is equally important as it allows artists to object to the use of their work that they might deem offensive whether it’s the use of their music in political campaigns, which has been a recurring theme this election cycle, or the use of their music in films that the Artist finds objectionable.

The latter was a problem for musician Connie Francis, who sued in 2002 objecting to her music’s licensing for “sexually themed” films she found inappropriate. Unfortunately for Francis, her case was dismissed in 2003. However, it would have stood a much better chance if European-style moral rights had been codified into other countries’ laws.

Many feel moral rights could easily be handled through contracts and that musicians often discuss the terms of attribution and credit as part of their negotiations. However, these negotiations, especially with new artists, are routinely uneven. Artists are often forced to waive rights that can come back to haunt them later because they lack negotiating leverage.

Earlier in India, most of the film artists and musicians who were quite famous and dominant in the market could not secure rights and financial status even though they were capable of excellent brilliance in their work. In the legal battles in the earlier time, the royalty for performance rights was offered to producers. In recent years, Javed Akhtar stood up and took many steps in his power to secure the rights of people associated with the entertainment industry. In the amendment that took place on 7th June 2012, it received the President’s overall assent. “The amendment did bring the Copyrights Act in confirmation with the WIPO Copyrights Treaty and WIPO Performances and Phonograms Treaty and reach way beyond that. This article specifically deals with singer, lyricist, and composer’s rights that have been incorporated by the 2012 amendment.” 

Provisions which deal with the moral rights under the Copyright Act, 1976:

Section 38B is a new provision in the Copyright Act which deals with the moral rights of performers. Moral rights of copyrights creators are recognized in civil law jurisdiction and, to some extent, in common law jurisdiction. The moral rights of a copyright owner include related rights such as the right to attribution, the right to have work published anonymously or pseudonymously, and the right to the work’s integrity. The preservation of the integrity of the work bars the work from alteration, distortion, or mutilation. It must be noted that moral rights associated with copyright work are different from economic rights. Even when assignments are made, the moral rights of the copyright owner remain. This particular provision — Section 38B(b) of the Act — states that ‘the performer of performance shall, independently of his right after assignment, either wholly or partially of his rights, have the right to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.’ The other right which a performer would have — under Section 38B(a) of the Act — is the right to claim to be identified as the performer of his performance except where omission is dictated by the manner of the use of the performance. This right under the proposed Section 38B(a) obviously cannot apply to extras in films as they are not credited by definition. It is pertinent to note that the provision also contains a safeguard against abuse of moral rights in the form of an Explanation which would state that ‘the mere removal of any portion of performance for editing, or to fit the recording within a limited duration, or any other modification required for purely technical reasons shall not be deemed to be prejudicial to the performer’s reputation.’ This, too, is analogous to the rights granted to authors: an author’s moral right would not be considered to have been violated merely because his or her work has not been displayed to his or her satisfaction. For example, if A sings a song “Dildara” and assigned the rights to B, even though there is an agreement between A and B, A would have the right to be acknowledged for being the singer. He can also prevent others from distorting it.

The problem of “literary theft” has long been recognized in Indian culture. Its widespread occurrence is documented in writing as early as the seventh century. It has been the subject of both complaint and investigation by Indian poets and aesthetic philosophers. For example, Anandavardhana, a ninth-century poet, undertakes a detailed analysis of the phenomenon: he identifies three distinct categories of theft, with only the last of the three, the “similarity between two individuals” being “permissible” conduct for authors. Moreover, in Indian tradition, the author was believed to have rights and interests in his ideas, which were equivalent to his interests in the final work, the position that is drastically different from Western copyright tradition. It was Krishnamurti who points out, plagiarism in tenth-century India was defined as “an appropriation by a writer of words and ideas – I emphasize, and ideas from the work of another and passing them off as his own.”

The Copyright Act currently governs copyright in India. Section 57 of the Copyright Act protects the author’s moral right, under the heading, “Author’s special right.” In recent years, the protection of moral rights in Section 57 has undergone several modifications. At the same time, current Indian law is specifically tailored to the requirements of Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works, the old Section 57 provided considerably more extensive protection for moral rights than what is required by Article 6bis. In particular, amendments to Section 57 restricted protection in two key areas: the scope of the author’s moral right of integrity, and the duration of moral rights. Therefore, it is exciting and relevant to consider the development of moral rights from the old to the new Section 57, examining the reasons why moral rights protection has been scaled back and attempting to evaluate the consequences of these changes for cultural activities in the Subcontinent. 

Current Indian Law and Article 6bis of the Berne Convention 

Section 57 of the Indian Copyright Act states: 

  1.   Independent of the author’s copyright and even after the assignment wholly or partially of the said copyright, the author shall have the right to: 

(a)claim authorship of the work; and

(b) restrain the claim damages in respect of any distortion, mutilation, modification or other Act with the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other Act would be prejudicial to his honor or reputation: 

Provided that the author shall not have the right to restrain the claim damages regarding any indication of a computer program to which clause (aa) of sub-section (1) of Section 52 applies. 

  1.   The right conferred upon an author of the work by sub-section (1), other than the right to claim authorship of the work, maybe exercised by the legal representatives of the author. 

The current Section 57 closely reflects the provisions of Article 6bis of the Berne Convention. Article 6bis provides for the protection of two moral rights in international copyright law: the author’s right of attribution and his right to his work’s integrity. Article 6bis, which has remained virtually unchanged since its incorporation into the Berne Convention at the 1928 Rome revision conference, states that “the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action with, the said work, which would be prejudicial to his honor or reputation.” This provision also specifies that the authors’ moral rights shall be “independent” of their economic reasons and will continue to rest with the author “even after the transfer” of his economic rights. 

According to the Berne provisions, moral rights are to be protected, at a minimum, “at least until the expiry of the economic rights.” It is clear that the Berne Convention envisions the possibility of longer-term protection for moral rights; indeed, this particular formulation reflects the need to accommodate extended terms of moral rights protection in certain civil law jurisdictions. However, Article 6bis (2) also makes one concession allowing a shorter duration for moral rights: those countries whose legislation does not provide for the protection of all of the specified moral rights after the author’s death may cease to protect some moral rights upon his death. This provision was adopted to accommodate common-law actions in tort, which have long been presented by several common-law countries as legal alternatives to the statutory protection of moral rights per se. Activities such as defamation cannot commonly be pursued after the death of the injured party. 

While India’s current provisions on moral rights meet the minimum standards set out in the Berne Convention, they represent a scaled-down version of the original Indian rules on moral rights set out in the Act of 1957. The old Section 57 provided protection for moral rights that were more comprehensive and more nuanced than the current provisions. Considering the old legislation alongside the new reveals that the earlier regulations, like legislation in many developing countries, may have been influenced favorably by the principles of Continental European law. In its breadth and expansiveness, it also reflected a typically Indian approach to culture.

While the concerns that may be at the heart of the Indian government’s reluctance to expand moral rights protection are legitimate, the courts’ approach is firmly grounded in the realities of Indian society. It may eventually prove to be the more far-sighted view. The process of industrialization in India has seen the development of the entertainment industry with significant economic and political clout, especially in its incarnation as the commercial Hindi-language film industry. Indians, like people in most countries of the world, also have a fascination with the forms of American popular culture, which enjoy increasing prominence in India, perhaps at the expense of traditional cultural perspectives. Simultaneously, the development of less highly- commercialized activities, such as creative writing in regional languages, is haphazard and does not appear to enjoy any particular benefit of governmental support. In upholding moral rights protections, Indian courts have, in a sense, become the champions of individual creative efforts and non-commercial artistic endeavor – arduous and perhaps undervalued activities in present-day India. Through moral rights, their focus on the relationship between authors and their works has also allowed them to avoid the pitfalls of attempting to assess artistic quality, in an objective sense, in the courtroom.

Conclusion:

Consideration of moral rights on the international level reveals a pervasive dilemma. On the one hand, awareness of the author’s moral interests, particularly in the environment of new technologies, appears to be growing. On the other hand, international negotiators seem to have reached a stalemate to develop a harmonization program for moral rights. The controversy over the author’s \artist’s moral interests runs deep. Classification of this aspect of intellectual property rights at the international level requires resolving complex and fundamental conflicts — divergent legal traditions, the appropriate social role of creative authorship, and the very logic of internationalization itself.

On balance, it seems that the maintenance of a separate regime for the protection of moral rights, independent of the global trends towards copyright harmonization may produce more negative than positive results. When moral rights do not enjoy a status equal to that of economic rights of authorship, critical cultural values fall under attack. Internationalizing moral rights would allow them to keep pace with other aspects of copyright. Their presence in international copyright law could also bring a renewed cultural focus to a sphere of regulation that has become almost exclusively commercial and commodity-driven. Lastly, spreading awareness about copyright issues amongst the legal fraternity will surely go a long way in providing proper and adequate recognition to the moral rights of authors\artist.

If we look in into consequences, it is very well suggested that every coin has two sides, there will always lie some imbalance in every situation but on a very global note what’s important is to judge the greater good, if we look into the scene there is a question for justice, a man’s work is just like an investment for which there should always be legal insurance for protection.

Pratik Harsh
[email protected]

Founder and Partner at Vidhinyas Solicitors & Associates He specializes mainly in matters related to Intellectual Property Law, Family Disputes & Commercial Contracts. He is skilled in IPR filings, Legal Documentation, and conducting corresponding legal formalities. He is experienced in conducting and preparing for seminars, client presentations, and negotiations.

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