Recently, in a US copyright suit against Rapper Jay Z , the issue of ‘moral rights’ took center stage. The copyright suit was with regards to the sampling of an old Egyptian song in Jay-Z’s hit number “Big Pimpin’”. According to Jay Z a.k.a Shawn Carter and producer Timbaland a.k.a Timothy Mosley, the hook or the sample of Khosara Khosara was licensed to them. They paid $100,000 in total to EMI Music Arabia for the license in 2001. However, Osama Fahmy, nephew of Egyptian composer Baligh Hamdi (original composer of the song), was of the opinion that by using the sample for Big Pimpin’ they had ‘mutilated’ and ‘distorted’ the song. As per the Egyptian copyright law, by licensing the song he might have given up his ‘economic rights’ but his ‘moral rights’ were still intact, and only after his permission could they have made use of Khosara Khosara.
This brings us to the question-what are moral rights? And how are they different from economic rights? In the foregoing paragraph we saw Mr. Fahmy speaking of moral rights, a concept that much like the Egyptian copyright law (and the copyright law of many other countries) also exists under Indian Copyright Act, 1957.
Economic rights, as the name suggests give the author of a work financial gains. These rights are transferable in nature, which means that these rights can be assigned to a third party. Moral right, however, are not. Moral rights (or droit moral) originated in French law. These rights are enshrined in Article 6bis of the Berne Convention which states “Independent of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation “. Section 57 of the Indian Copyright Act, which deals with moral rights of authors, is modeled after the preceding Article.
Morals are of two types- (a) right of paternity and (b) right of integrity. Under Right of Paternity or Droit de Paternite, an author has a right to have the work attributed to him. He has the right to claim the authorship of the work and prevent all others from claiming authorship over the said work. Whereas under Right of Integrity or Droit de respect de l’oeuvre , the author has a right to protect his work from getting mutilated, distorted or altered in a manner, which could be detrimental to his honor. Under the Indian Copyright Act, Section 57 clearly states that “Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright”, the author shall have the right to claim authorship (right of paternity) as well as the right to ‘restrain’ or ‘claim damages’ in case of mutilation, distortion or modification of his work or any other act other which would be ‘prejudicial to his honour or reputation”.
However, the proviso to Section 57 (1) (b) states that this right to restrain someone or claim damages shall not persist with respect to ‘any adaptation of a computer programme to which clause (aa) of sub-section (1) of section 52 applies’. Section 52 of the Act deals with the concept of fair use or certain permitted acts with respect to copyright. Section 52 (1) (aa) states that a lawful possessor of a computer programme is permitted to make adaptation or copies of a computer programme in two circumstances- firstly , to utilize the programme for the purpose it was supplied and secondly, for temporary protection against loss or damage to use the program for the purposes for which it was supplied.
Further, the explanation appended to this Section also clarifies that the right to withdrawal or retraction on account of non-satisfaction of the author is not recognized. This, as per the Section, means that failure to display the work of the author or failure to display it to the satisfaction of the author shall not be deemed as infringement of rights as conferred by Section 57.
One of the first landmark judgments in India with respect to ‘moral rights’ was Mannu Bhandari v. Kala Vikas Pictures Ltd., (AIR 1987 Del. 13). In this case the dispute arose with respect to a novel called Aap Ka Bunty written by the plaintiff. The plaintiff had assigned the cinematograph film rights in the novel to Kala Vikas Picture (Defendants). The Court made several observations with respect to moral rights, via this case. Firstly, the Court stated that “Section 57 lifts the author’s status beyond the material gains of copyright and gives it a special status”. Another important aspect discussed was that the special protection awarded to the authors, that is the remedies of a restraint order or damages, can be claimed “even after the assignment either wholly or partially of the said copyright”. This meant that the terms of an assignment contract have to be in accordance with Section 57. Also with respect to modifications, the Court stated that only such modifications are permissible which do not mutilate or distort the original source material.
A stark contrast from the Indian Law, the US copyright Law does not recognize the concept of ‘moral rights’. In the copyright suit, Fahmy v. Jay Z (mentioned in the first para of this article), the US District Court, Central District of California, reiterated this stand. The Court discussed the concept of moral rights stating that “ The separate viability of [moral rights] is such that a full transfer of copyright may suffice for all economic purposes, but may exert no impact on the assertion of [moral rights] claims.” [Nimmer on Copyright § 8D.01 (2013)].
However, with respect to the recognition of these right in the US, the Court quoted the recent decision of the 9th Circuit in Garcia v. Google, Inc., stating that the plaintiff in the case was not “protected by the benefits found in many European countries, where authors have “moral rights” to control the integrity of their works and to guard against distortion, manipulation, or misappropriation. Except for a limited universe of works of visual art,such as paintings and drawings protected under the Visual Artists Rights Act of 1990, United States copyright law generally does not recognize moral rights.” Needless to say that Mr. Fahmy lost the case due to lack of standing.
Authored by Anchita Sharma