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”!!