Date of First Publication: 4th January 2010
Dr. Kalyan needs to be thanked for the timely post (dated 3rd January) on the current controversy over the credits for the movie “3 Idiots”. Let me take this opportunity to air a couple of observations/questions on related issues:
1. Can the author, in this instance a fairly well known and popular author Mr. Chetan Bhagat, contract away his “moral rights” specifically, and not through the mode of assignment of copyrights of the work? Nothing in our Copyright Law (Section 57 or otherwise) prevents an author from specifically agreeing not to enforce the applicable “moral rights” over a particular work – what can legally be termed as a waiver. The last sentence of Dr. Kalyan’s post that no contract/license would have been needed if nothing of the work has been used, is to my understanding, a limited view of contracts in Copyrights. In the interests of “IP safety”, is it not feasible to have a contract with the author, to the effect, accepting that there are similarities and precluding the author from interfering with the commercial exploitation of a story that is otherwise original and independent of the published work. Of course, it is a separate issue, to be conclusively settled through litigation, as to whether the similarities are so substantial as to constitute a violation of the copyrights of the author.
2. This brings us to the question as to why are such rights of paternity and integrity termed as “moral rights”. Are not such rights to be treated as sacrosanct and be protected by not making them vulnerable to the ever abiding commercial interests and exploitative practices. However, despite being deservingly accorded the exalted status under the Berne Convention for the Protection of Literary and Artistic Works, 1886 (last revised in 1971), “moral rights” are not mandatory and binding across the world since the WTO TRIPs Agreement, which incorporates the first 21 Articles of this Convention, makes an explicit exclusion of “moral rights”. It is now left to the laws of each country to provide for the protection and enforcement of “moral rights” in their respective jurisdictions. Therefore, it is heartening to note that the Indian Copyright law (through Section 57) expressly protects the moral rights of an author and the Courts too have been prompt in enforcing them as well.
It is indeed more in societal and public interest that “moral rights” have been evolved into legally enforceable format, lest, people with economic power suffocate creative individuals under the might of copyrights. Therefore, in pursuance of the terminology employed, “moral rights” are historically justified as bearing an independent existence in contrast to the economic value of copyrights. However, what we perhaps need to realize is that the legal recognition of “moral rights” is still not sufficiently immune from individual author’s freedom to contract. Ironically, the concept of “moral rights” in the world of IPR enforcement is today considered as an idiosyncracy – adding more value to the tale of “3 Idiots”!!
My comment is in response to all the blog posts with regard to the 3 idiots controversy which I have read till now on Sinapse and other IP blog posts as well. I thought there were a few points which were neglected because of all the hype that was given to the statements made on Twitter and few news channels.
The 3 idiots controversy, Correct me if I’m wrong, is about Moral Rights alone and has nothing to do with Right to adaptation.
The right to adaptation was assigned by the author to the movie maker in the form of a contract for which the author was sufficiently paid.
Coming to Moral rights, more particularly right to attribution, this would be sufficiently taken care of if the Movie maker conveys to the public that the movie was based on the author’s book.
Isn’t the mention of Chetan Bhagat’s name and the book name in the rolling credits in the way specified in the contract and agreed upon by the author, sufficient to fulfill the authors right to attribution?
So which moral rights are we saying the movie makers have infringed? Will a statement made by the film maker in rage in front of the media which the media blew up out of proportion be considered to assess infringement of moral rights? (its a genuine question. Please let me know if there is any provision that allows this)
Also, I believe all the attributions made in the rolling credits have been made in the same font and size. Why do you think that Chetan Bhagat’s name should have been provided in a more conspicuous way than may be the music director or lyricist? Isn’t their copyright of the same relevance?
In my opinion, the basic copyright issue has been put aside by most discussants and we are getting flowed by the story portrayed by the media who have little knowledge about Copyrights. What do you guys think?
I find the discussion on moral rights very interesting as it brings back memories of the WIPO Diplomatic Conference, 1996. One of the reasons why the WIPO Performance Treaty did not cover audio-visual works was the strong difference of opinion between the United States and the European Commission over the moral rights of the director and actors of films.
Regarding the observations of Prof. Anil Suraj, I am to say that it is no doubt true that the WTO-TRIPs agreement does exclude moral rights; however, it is not exactly correct to say that moral rights are not mandatory and binding across the world. Article 1 (4) of the WIPO Copyright Treaty , 1996 makes it mandatory for the Contracting Parties to comply with Articles 1 to 21 and the Appendix of the Berne Convention, and therefore are required to comply with Article 6 bis of the Berne Convention dealing with moral rights. Further, Article 1 (1) of the WIPO Copyright Treaty makes it explicitly clear that that ‘Treaty shall not have any connection with treaties other than the Berne Convention, nor shall it prejudice any rights and obligations under any other treaties’. Hence WTO-TRIPs agreement does not matter in respect of countries which are parties to the WIPO Copyright Treaty as well in so far as moral rights are concerned. They are required to respect moral rights in the same manner as they were respecting under Berne Convention. The WIPO Copyright Treaty does not as yet have as many Contracting Parties as Berne Convention; however, most major economies of the world are parties, and one can expect that in the not so many distant future that it would be as universal as the Berne Convention.
Having said it should be admitted that Berne and Paris Conventions unalike the WTO-TRIPs agreement allows considerable flexibility to Contracting Parties in regard to the scope and duration of protection. In the 1980s, Dr Bogsch, the then Director General, WIPO, who was lobbying the Indian government to accede to Paris Convention, informed the Indian government that the Indian Patent Act, which then did not confer product patent right in respect of chemicals and pharmaceuticals, was wholly consistent with Paris Convention, and that therefore needs no amendment even after India accedes to the Paris Convention. Or to give another example of the flexibility of these Conventions, even after its accession to Berne Convention, the United States provides for moral rights in respect of visual art works only. Berne and Paris Conventions belong to the international era of IPRs when the objective was harmonization of national laws and progressive enhancement of the standards of protection. In contrast, the WTO-TRIPs whose entry into force marks the beginning of the global era of IPRs in which the objective of treaty making is not harmonization but laying down of binding minimum norms. The WIPO Copyright Treaty, interestingly, has features of both eras, in that it laid down the minimum norms before any country or regional body like the European Community enacted legislation laying down stands of protection in the digital medium, and yet the same time being devoid of ‘teeth’ for enforcement it is not as binding as the global era WTO-TRIPs agreement.
Comment received through email from Mr. R V Vaidyanatha Ayyar
Vinita, the right of adaptation which Mr.Bhagat assigned to the other party is the right to adapt the book into a movie. The moral right of integrity is a right to prevent distortion. They are two completely different rights.