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.

6 November 2015

The Author's Right to Attribution (Or Not)

Section 57 of the Copyright Act, 1957, describes the special rights of authors in the following terms:
Section 57. Author’s special rights. 
(1) 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:
(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work  if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:
Provided that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer programme to which clause (aa) of sub-section (1) of section 52 applies.
Explanation. Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.
(2) The right conferred upon an author of a work by sub-section (1),  may be exercised by the legal representatives of the author. 
The Section was amended in 2012 to remove the restriction which had earlier led to the right in Section 57(1)(b) being applicable only for as long as copyright subsisted in the relevant work. Further, Section 57(2) of the statute was amended: prior to the amendment, it read: 'The right conferred upon an author of a work by sub-section (1), other than the right to claim authorship of the work, may be exercised by the legal representatives of the author.' The 2012 amendment removed the words 'other than the right to claim authorship of the work' from the provision presumably intending it to mean that the legal representatives of the author could claim to have the author credited, and not that the author's legal representatives could claim to be credited themselves.

The rights in Section 57 of the Copyright Act are popularly described as moral rights, with the rights in Sections 57(1)(a) and (b) being referred to as the rights to attribution/paternity and integrity respectively. Despite this, it isn't entirely clear that the Section articulates the right to attribution, even if it does describe the right to integrity.

The words of the statute are ‘the right to claim authorship’ and not ‘the right to be attributed’. The reference to claiming authorship seems to imply that the right of an author to be attributed is a given, and that the right to claim authorship contained in Section 57(1)(a) comes into play only if attribution is not accorded (as the statute implies it should be). Per this reading, waivers of moral rights would not so much be waivers of the right to attribution but waivers of the right to initiate legal proceedings should attribution not be accorded to an author.

A waiver of the Section 57(1)(a) right could, if this reading is supportable, well fall foul of the Contract Act since it negates the right (to initiate legal proceedings) to claim another right (i.e. attribution) which latter right is a given if not sacrosanct. There’s potentially a problem with the restraint of legal proceedings (even though the Act doesn’t require claims to be made through courts) if crediting an author is itself enshrined in the structure of the statute as it seems to be and, consequently, if requiring that the author of a work be credited is in fact a facet of public policy.

Of course, this also has implications for the waiver of so-called moral rights. If requiring the accordance of credit to authors is indeed a facet of public policy, to convincingly argue that public policy allows a person to be restrained from claiming what public policy has already granted him would be a challenge. (After all, some of the arguments in favour of allowing the waiver of moral rights claim that public policy allows the waiver of what is merely a legal right.)

Further, not reading Section 57(1)(a) as an author's right to attribution would help explain Section 57(2) as it now reads. If the popular understanding that 57(1)(a) grants the author the right to be attributed for his work is accurate then, barring the possibility of spectacularly bad drafting, Section 57(2) could be interpreted to mean that the legal representatives of an author could claim credit for/authorship of a work. On the other hand, if 57(1)(a) merely articulates the right of an author to claim authorship where it has not been accorded to him as it should have been, it follows that post-amendment, Section 57 only allows legal representatives of an author to claim authorship on behalf of the author. The latter reading has the distinct merit of not leading to the absurd eventuality of authors' legal representatives being able, in theory, to claim authorship for works they have not authored (even if not in practice, as the courts would probably ensure).

(Also see: 1. Getting Moral Rights Waived; 2. Ghost-writing, Plagiarism and Copyright)

(This post is by Nandita Saikia and was first published at Indian Copyright.)

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