Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

20 September 2010

Ghost-writing, Plagiarism and Copyright

Ghost writing is intriguing because it exists in a gray area. It is clearly a form of plagiarism, although it is supposedly plagiarism with the consent of the actual author (the ghost writer) of the work. Perhaps that makes it morally acceptable? In other words, does the consent of the actual author make it acceptable for the ostensible author (the person commissioning the work) to appropriate authorship of the work? It is, after all, a contractual relationship, in most cases, and one of the essential elements of a contract is that it be entered into voluntarily by the parties. Therefore, it could be argued, that if the actual author consented to having his work published as the work of the ostensible author, there can be no case of plagiarism really having occurred.

However, if one were to look at the contexts within which ghost-writing contracts are generally signed, it is apparent that as a general rule, the ghost-writer is a person whose socio-economic status is lower than that of the ostensible author. Whether or not there can be true consent in such circumstances is debatable. While there may be no coercion in the legal sense of the word which would invalidate any specific contract, the broader picture may clearly demonstrate that socio-economic constraints cause actual authors to consent to the publication of their work under the names of other persons. As such, it may be possible to consider ghost-writing contracts to be unethical despite being legal.

Further, leaving aside arrangements which involve concrete ghost-writing agreements, it is also pertinent to note that the line between editing and ghost-writing is sometimes extremely thin, as many editors would be able to attest to. This is because when “authors” produce badly written texts those texts may require not merely editing but re-writing before they are suitable for publication. In most cases, the editor would not even be credited as a joint author despite possibly having entirely written the final text. This is especially true if the ostensible author happens to be a well-known person, and the editor is not.

Another route through which an actual author may become a ghost writer is when he is a person working within an organisation, possibly as an assistant of a researcher, or at some other analogous lower-rung position (in comparison to the ostensible author). For example, describing the process through which a person could besome a ghost-writer, Debora Weber-Wulff says, “First an assistant prepares some material. Then something is written by an assistant and rewritten by the researcher before publishing. Then under the pressure to publish more and more and more a text gets passed through without change, but the true author is kept hidden, and the researcher does not even find anything wrong with this.”

As such, ghost-writing arrangements may not involve express contracts, and could well involve merely implicit consent, which consent may be forced. That is to say that the actual author may be required by circumstances to consent to the appropriation of his work by the ostensible author. Consent may not be voluntary, or for that matter, even exist. It may simply be assumed, and the actual author may not be in a position to complain about the loss of his right to be attributed for his work. In such circumstances, it is clear that there is no true consent, and thus, without the circumstances being changed, it is unlikely that it would be possible to consider ghost-writing to be above the board from either an ethical or legal point of view.

Coming back to express ghost-writing agreements though, leaving aside the issue of consent, it is unclear what their legal position would be under Indian law. This is because under the Copyright Act, the first owner of a copyrighted work is determined according to the provisions of Section 17. Although this Section contemplates works made for hire (or commissioned works), under Indian copyright law, the work-for-hire doctrine as it exists in Title 17 of the United States Code does not exist. In India, the person commissioning a work may become its first owner but the commissioner cannot become the “first author”.

Therefore, the actual author or the ghost writer would continue to be the author of the work. Under Section 57 of the Copyright Act, the author of a work has the right to be attributed as the author of his work. It is unclear whether an author may waive the right to attribution as contemplated by Section 57. Relying on the 2006 Centrotrade judgment of the Supreme Court, it may be argued that the right to attribution can be waived by an author since this judgement states: “A person may waive his right. Such waiver of right is permissible even in relation to a benefit conferred under the law. But it is trite that no right can be waived where public policy or public interest is involved.”

However, this judgement does not pertain to copyright, much less to Section 57 rights. As far as moral rights are concerned, it would be possible to argue that they cannot be waived, and that any supposed waiver of moral rights is invalid. The crux of the matter is that the question of the waiver of moral rights has not specifically been determined by an Indian court, and the statute is silent on the issue. As such, the possibility of the waiver of the moral right to attribution exists in an extremely gray area of copyright law. Should it transpire that the moral right of an author to attribution cannot be waived, it would appear that ghost-writing contracts would be ultra vires the Copyright Act, and thus be invalid under Indian law.

Leaving aside the question of validity of ghost-writing agreements, there is also the question of public perception. Ghost-writing could be considered to be fraud in the popular sense of the word since the intention of a ghost-writing arrangement is to blind the audience to the fact that the ghost-written work is not a work which has been written by its ostensible author. To some, that in itself, would make ghost-writing arrangements unethical, particularly considering that ghost-writing arrangements generally serve to increase the “prestige” of the (usually “more powerful”) ostensible author by misappropriating the “prestige” which should have been accorded to the actual author (who has comparatively less “power”).

(This post is by Nandita Saikia and was first published at LawMatters.in.)

Case Citation: Centrotrade Minerals and Metal. Inc. v. Hindustan Copper Limited; (2006) 11 SCC 245

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