Moral Rights Enforcement
The content here is for information only. Please seek guidance from an Intellectual Property lawyer in case of such disputes.
Definition
Moral rights (Copyright Act of 1957, Section 57), aka ‘Author’s Special Rights,' restore the personal interest of the artist to their work after the artist lets go of their economic (monetary) rights. Moral rights protect the personal and reputational bond between an artist and their work, rather than its commercial value. Moral rights are not economic rights.
There are two rights connected to an artist's moral rights: the right to rightly associate a work with the creator (right to paternity), and the right to maintain the purity of a work against derogation towards the artist’s honour and reputation (right to integrity).
These rights are valid in perpetuity, meaning they can be enforced by the artist's legal representatives after their death, even after their copyright term lapses. These rights are also inalienable, meaning they are non-transferable. However, a voluntary waiver aligned with public policy is permitted.
The doctrine originates in France and Germany as 'droit moral.' The Berne Convention for the Protection of Literary and Artistic Works of 1886 (Article 6bis) internationalised these rights, extending protection for all signatory nations. India aligned with this standard, while also linking moral rights to cultural heritage. Total destruction of a work counts as a violation as well, as it reduces the creative corpus of an artist, even if no one is there to see the destroyed work.
The 2012 Copyright amendment introduced moral rights for performance art, in compliance with the WIPO Performers and Phonograms Treaty, 1996 and the Beijing Treaty on Audio-Visual Performances, 2012.
Enforcement
When an individual or entity treats your work in a way that paints you in a false light or removes your attribution/ credit as the artist enough to harm your reputation, it is considered a violation of your moral rights. This is a civil offence, meaning this is resolved by the artist seeking damage and remedies from the offending party, rather than a criminal punishment.
- Assemble proof of authorship. A copyright certificate counts as the most relevant; however, contracts, invoices, emails, sketches, dated photographs, catalogue credits, etc., serve as evidence as well. For electronic evidence, read here about Section 65b of the Indian Evidence Act of 1872.
- Assemble proof of reputational harm. Photograph/video, timestamps, URLs, letters, testimonies, etc.
- Call for arbitration and litigation as the last resort. Speak to an experienced intellectual property lawyer. In case arbitration fails, the case should be heard in a District or High Court in a jurisdiction where you live or hold your business. Please confirm that your lawyer is eligible to practice in said Court. You can also apply for the case at the location of infringement.
- The remedies you can apply for during arbitration and litigation are an injunction, monetary compensation, restoration/ removal of the derogatory treatment, a public apology, account of profits, and the return of infringing copies.
- Exhibiting credible evidence of harm is of the essence, as the judges will mainly examine harm to repute. The failure to display an artwork does not count as a violation. Prior alteration consent in commissions/agreements can weaken your claim, so it is important to have a standard practice of heavily scrutinising your contracts.
- An infringement of a performance artist's moral rights can result in a criminal suit under Section 38b of the Copyright Act. Repeat offenses incur harsher penalties.
Moral rights show that an artist's or performer’s creative personality deserves as much protection as the works itself. While the rights are secured, enforcement is not, mostly due to evidentiary burden.
Moral rights are enforceable independent of copyright ownership, lasting also after economic rights are transferred or lapse. Robust and active encouragement to enforce these rights is essential to preserve the artist's enduring bond with their work.