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Moral Rights — A Comparative Analysis

Post-GRADUATE DIPLOMA IN Intellectual property rights law

Submitted by:
Moral Rights — A Comparative Analysis

Project Assignment
Post-Graduate Diploma in Intellectual Property Rights Law

Sachin Garg

Certified that this project report titled “Moral Rights — A Comparative

Analysis” is my original work and that I have not taken or borrowed
any material from others' work nor have I presented this partly or fully
to any other Institution/College/University.

I have complied with all the formalities in this regard.

Date: 8 June, 2007 Sachin Garg


1 Introduction 6

2 Intellectual Property 8
2.1 Brief History of Intellectual Property . . . . . . . . . . . . . . 9
2.2 Intellectual Property Rights Laws . . . . . . . . . . . . . . . . 11
2.2.1 Salient Characteristics of Intellectual Property Rights
Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.2.2 Indian Intellectual Property Rights Laws . . . . . . . 12

3 The Law of Copyright 13

3.1 Idea versus Expression . . . . . . . . . . . . . . . . . . . . . . 13
3.2 History of Copyright Law . . . . . . . . . . . . . . . . . . . . 14
3.2.1 Statute of Anne . . . . . . . . . . . . . . . . . . . . . . 15
3.2.2 Internationalisation of Copyright . . . . . . . . . . . . 15
3.3 Rights under Copyright Law . . . . . . . . . . . . . . . . . . . 18
3.3.1 How do the Rights work? . . . . . . . . . . . . . . . . 19

4 A Survey of Moral Rights 20

4.1 Civil Law Concept of Moral Rights . . . . . . . . . . . . . . . 21
4.2 International Acceptance of Moral Rights . . . . . . . . . . . . 22
4.2.1 Moral Rights under the Berne Convention . . . . . . . 22
4.2.2 Moral Rights under TRIPS . . . . . . . . . . . . . . . 23
4.3 What Constitutes Moral Rights? . . . . . . . . . . . . . . . . 23
4.3.1 Right of Disclosure . . . . . . . . . . . . . . . . . . . . 24 Civil Law Jurisdictions . . . . . . . . . . . . . 24 Common Law Jurisdictions . . . . . . . . . . 25
4.3.2 Right of Withdrawal . . . . . . . . . . . . . . . . . . . 26 Civil Law Jurisdictions . . . . . . . . . . . . . 26 Common Law Jurisdictions . . . . . . . . . . 26
4.3.3 Right of Attribution . . . . . . . . . . . . . . . . . . . 26 Civil Law Jurisdictions . . . . . . . . . . . . . 27

2 Common Law Jurisdictions . . . . . . . . . . 28
4.3.4 Right of Integrity . . . . . . . . . . . . . . . . . . . . . 29 Civil Law Jurisdictions . . . . . . . . . . . . . 30 Common Law Jurisdictions . . . . . . . . . . 31
4.3.5 Visual Artists Rights Act (VARA) . . . . . . . . . . . . 32
4.4 Exceptions to, Waivers and Duration of Moral Rights . . . . . 32
4.4.1 Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.4.2 Waivers and Transfers . . . . . . . . . . . . . . . . . . 33
4.4.3 Works Made for Hire . . . . . . . . . . . . . . . . . . . 34
4.4.4 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.5 Moral Rights in India . . . . . . . . . . . . . . . . . . . . . . . 35
4.5.1 Case Law . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.5.2 Mannu Bhandari Case . . . . . . . . . . . . . . . . . . 36
4.5.3 Amar Nath Sehgal Case . . . . . . . . . . . . . . . . . 37

5 Whither Moral Rights? 39

Bibliography 43


This project report titled “Moral rights” is being submitted as a part of

the requirements for the Post Graduate Diploma in Intellectual Property
Rights Law programme offered by the Distance Education Department of
the National Law School of India University, Bangalore.
The topic has been chosen as it is interesting to look at the possible chal-
lenges that intersection of Information Technology, Digital Media, Computer
Software and Copyright Law will bring. I have looked at but a narrow part
of the story — Moral Rights or Droit Moral, a set of rights which prima facie
go against the avowed reasons for copyright’s stated purposes — enrichment
of the Public Domain. The immediate impetus for this topic came when I
looked at the Employment Agreement for one of my friends, which stated:

You also hereby irrevocably transfer and assign to [Employer]1 ,

and waive and agree never to assert, any and all Moral Rights
you may have in or with respect to any work, documentation,
designs and materials, patents, copyright or any other form of
intellectual property, whether protected under law or not, even
after termination of your work during or after the tenure of your

This clause got me thinking about the supposed inalienability and non-waiver
of the Moral Rights and what is the exact Indian position on waiver of such
rights (whether these rights can be waived in a Indian context), and exactly
(since this was for a software development job), what could be the impact
of Droit Moral on software development and especially for the world of Free
and Open Source Software.
I have tried to do some research into these topics by looking at the avail-
able research and also attempted an Indian perspective on the same.

name deleted


At the outset, I would like to record my gratitude to the Free and Open Source
Software community for introducing me to the idea of Free Software. This
idea and the interesting concept of “copyleft” made me realise how interesting
a study of Law could be. Hearing Prof. Eben Moglen speak in August, make
me do this course even more.
I wish to thank Dr. T. Ramakrishna, Co-ordinator, CIPRA, NLSIU for
infusing me with the spirit of discovery and making me look into these obscure
questions. I would like to thank my friend, Aman Shahi, whose employment
contract gave me the spark I wanted. I also wish to thank my fellow course-
mates for being so inquisitive and interested in the contact classes, which
helped us shed light on some of the more obscure questions of law.
Many thanks are due to my family – my parents and siblings for sup-
porting me through this course and egging me on to complete it. I would
especially like to thank my sister-in-law Payal Agarwal, for helping me pro-
cure some important research material from her university library. I have
to specially mention the contribution of my wife Kshma who constantly mo-
tivated me, accepted the busy schedule with equanimity and sacrificed her
weekends for my studies.
I apologise to my little bundle of sunshine, Sameeksha who couldn’t un-
derstand why her father was cross with her and bore it all in stride.

Chapter 1


The world of Intellectual Property Rights (IPR) law is at a crossroads. The

pervasive use of digital technologies is making us question the basic premises
underlying Intellectual Property Rights and how it should be managed so as
to ensure that “Free Culture” remains free, the public domain continues to
be enriched, while ensuring creativity gets due returns.
In this work, we will look at the other, often overlooked aspect of copyright
law — “Moral Rights” and how they may work in the context of the digital
age. The concept of Moral Rights or Droit Moral, the foundation of which lies
in the concept of “author’s right”—upon which the copyright of continental
Europe is built, are a set of rights which persist with the author even after
he has transferred his economic rights to another. Prima facie, this would
seem to hinder the exploitation of said work and also be at conflict with one
of the avowed reasons for copyright’s stated purposes — enrichment of the
Public Domain.
We will try to understand whether this is really the case by looking at
• the underpinnings of Intellectual Property and Copyright Law,
• a detailed analysis of what Moral Rights are,
• how Moral Rights work around the world,
• Moral Rights in India,
• finish off with some open questions, especially with regards to the po-
tential impact of Moral Rights on software development
This work has been organised as follows:
• Chapter 2 looks at the basic premises behind Intellectual Property
Rights and a brief history of the same

• Chapter 3 looks at Copyright Law in detail — history, rights associated
with Copyrights and a fuller treatment of Moral Rights

• Chapter 4 is a brief survey of Moral Rights, comparing and contrasting

the application of this doctrine amongst the Civil Law and Common
Law jurisdictions. It also looks at the state of Moral Rights in India.

• We end up by discussing the future of Moral Rights and ask certain

questions in Chapter 5.

Chapter 2

Intellectual Property

Intellectual Property Rights is an umbrella term used for a bundle of exclusive

and negative rights vested in relation to “property” created by the labours of
the mind. These are in relation to the particular form or manner in which
ideas or information are expressed or manifested, and not in relation to the
ideas or concepts themselves.
The charter of the World Intellectual Property Organization (WIPO) says 2 :

“intellectual property” shall include the rights relating to:

• literary, artistic and scientific works,
• performances of performing artists, phonograms, and broad-
• inventions in all fields of human endeavor,
• scientific discoveries,
• industrial designs,
• trademarks, service marks, and commercial names and des-
• protection against unfair competition,
• and all other rights resulting from intellectual activity in the
industrial, scientific, literary or artistic fields

The above list includes a number of fields of endeavour and the types of “prop-
erty” they seek to protect. Hence, the protection mechanisms are also diverse
Article 2 (viii) of the “Convention Establishing the World Intellectual Property Or-
ganization, Signed at Stockholm on July 14, 1967”. Available at
treaties/en/convention/trtdocs_wo029.html#P50_1504(Retrieved: 3 June, 2007)

covering “copyright” (the first in the list above), “related rights” (second in
the list) and the rest governed by “industrial property” laws.
The term “Intellectual Property” itself has been much criticised 3 :

The term “intellectual property” is at best a catch-all to lump

together disparate laws. Non-lawyers who hear one term applied
to these various laws tend to assume they are based on a common
principle, and function similarly.
Nothing could be further from the case. These laws originated
separately, evolved differently, cover different activities, have dif-
ferent rules, and raise different public policy issues. as These laws
originated separately, evolved differently, cover different activi-
ties, have different rules, and raise different public policy issues.

Nevertheless, we will continue to use this term for lack of a better or rather
more pervasive term for the same. In this report we will be concentrating
on Copyright, especially the concept of “Moral Rights” as associated with

2.1 Brief History of Intellectual Property

The concept of intellectual property–the idea that an idea can be
owned–is a child of the European Enlightenment4 .

The ancients believed in the free flow of knowledge, on the premise that
knowledge was sacred and handed down by the Gods, with humans being
mere disemminators of the same. In the 16th Century, Martin Luther would

Freely have I received, freely I have given, and I want nothing in

return5 .

Still, ideas did not flow freely and were still subject to state censorship in the
guise of a grant of Royal “privileges” (monopolies) in exchange for submission
to state censorship and control6 . Over the years, a view started pervading
Richard Stallman, Did You Say “Intellectual Property”? It’s a Seductive Mirage.
Available at: (Retrieved: 3 June,
Hesse, 2002, p. 26.
Hesse, 2002, p. 28.
Hesse, 2002, pp. 29–31.

that talked about a “natural property right” of authors in their intellectual
work. Two key works that were proponents of this was the 1690 “Second
Treatise” of John Locke’s and Edward Young’s “Conjectures on Original Com-
position” published in 1759. John Locke wrote in the Second Treatise:
every Man has a Property in his own Person. This no Body has
any right to but himself. The Labour of his Body, and the Work
of his Hands, we may say, are properly his7 .
A Germal philospher Johann Gottlieb Fichte suggested in an essay titled
“Proof of the Illegality of Reprinting: A Rationale and a Parable (1791)”
that for an idea to be regarded as a piece of real property, it had to be
assigned some unique distinguishing characteristic that allowed one person,
and no other, to claim it as his own. He said that this unique quality lay not
in the ideas per se, but rather in the manner in they were expressed.
Fichte’s distinctions – between the material and the immaterial
book, and between the content and form of ideas – were to be
critical in establishing a new theory of copyright based on the
natural right to property in the unique expressions of ideas, rather
than in the ideas themselves 8 .
But, on the other hand we had people who were arguing against this sort
of treatment to the “nascent” concept of Intellectual Property. In 1776, the
French mathematician and philosopher Condorcet expressed deep reserva-
tions on a philosophical plain. He disputed the Lockean line of argument:
There can be no relationship between property in ideas and [prop-
erty] in a field, which can serve only one man. [Literary property]
is not a property derived from the natural order and defended by
social force; it is a property founded in society itself. It is not a
true right; it is a privilege9 .
According to Condorcet, ideas exist because of the interaction of man and his
society. They are intrinsically “social” and the “fruit of a collective process of
experience”. He said that “if ideas, as social creations, were to be recognized
as a form of property, it must not be on the basis of an individual natural
right but rather on the basis of the social utility of a property-based regime”.
Thus Condorcet erected a second, alternative pillar for the modern notion of
intellectual property: social utilitarianism 10 .
Hesse, 2002, p. 33.
Woodmansee, 1984 cited in Hesse, 2002, p. 35. This is termed as the “Idea–
Expression Dichotomy” of Copyright (§3.1).
Hesse, 2002, p. 35.
Hesse, 2002, p. 36.

2.2 Intellectual Property Rights Laws
We see that Locke’s Personality Theory is pitted against Condorcet’s view
of Social Utilitarianism. Over the years, many points of view have emerged
in favour of either of these two camps and Intellectual Property (or Rights)
Laws have tried to strike a fine balance these two conflicting views, with the
twin motives of

• ensuring the public domain is enriched

• incentivising producers to contribute to the common stock,

by providing certain monopolies for a limited period. These laws aim to

reduce hoarding of knowledge and ensure freer and wider dissemination of
the same.
The so-called “Copyright Clause” (Article I, Section 8, Clause 8) of the
United States Constitution empowers Congress

To promote the Progress of Science and useful Arts, by securing

for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries 11 .

This has been interpreted to mean that the public good is the primary reason
for such power, while still ensuring that the author has a “fundamental,
eclusive right to control his work”12 . James Madison, the framer of the US
Constitution’s Copyright Clause stated 13 :

The utility of the power will scarcely be questioned. The copy-

right of authors has been solemnly adjudged, in Great Britain, to
be a right of common law. The right to useful inventions seems
with equal reason to belong to the inventors. The public good
fully coincides in both cases with the claims of individuals.

2.2.1 Salient Characteristics of Intellectual Property

Rights Laws
Some of the salient features of laws relating to Intellectual Property are:
Wikipedia article at: retrieved
7 June, 2007.
Gunlicks, 2001, pp. 602–603.
Gunlicks, 2001, p. 603. For a fuller treatment and a contextual analysis of this
statement see Bell, 2002

• Territorial in nature14 ,
• Time limited monopolies,
• Bundle of negative rights15 , and
• Not absolute. Certain “fair use” provisions exist.

2.2.2 Indian Intellectual Property Rights Laws

Towards this end, we have a number of laws that address different types
of knowledge (the Indian Acts that correspond to the same are given in
• Copyrights (Copyright Act, 1957 (amended 1994))
• Patents (Patents Act, 1970 (amended 2002))
• Trademarks (Trademarks Act, 1999 (replaces Trade and Merchandise
Marks Act, 1958))
• Plant Varieties (Protection of Plant Varieties and Farmers’ Rights Act,
• Geographical Indications (The Geographical Indications of Goods (Reg-
istration and Protection) Act, 1999)
• Biodiversity (the Biological Diversity Act, 2002)
• Industrial Designs (The Designs Act, 2000 (replaces the Designs Act,
• Integrated Circuits Layout (The Semiconductor IC Layout-Design Act,
• Trade Secrets (No Indian law for this, comes under purview of Contract
law, Torts etc.)
• Traditional Knowledge (comes under the combined purview of Patents,
Plan Varieties and Bio-diversity etc.)
In this work, we will be only looking in detail at Copyright Law in Chapter
Certain international treaties and conventions exist so as to attempt to harmonise
some of the features of various jurisdictions and offer extra-territorial protection. See
A negative right helps the holder of the right to prevent others from doing something
that only the right holder is entitled to

Chapter 3

The Law of Copyright

Copyright is a right given by the law to creators of literary, dra-

matic, musical and artistic works and producers of cinematograph
films and sound recordings. In fact, it is a bundle of rights in-
cluding, inter alia, rights of reproduction, communication to the
public, adaptation and translation of the work. There could be
slight variations in the composition of the rights depending on
the work 16 .

3.1 Idea versus Expression

The Idea–Expression dichotomy is an integral part of copyright. As discussed
in § 2.1, Fitche suggested that the precise way in which ideas were expressed
was important, rather than the idea itself. This has been taken forward and
Copyright specifically requires the “fixation” of an idea to a concrete medium
before it can get protection. This implies that the same idea can be expressed
by different people in different ways and would be considered distinct 17 .
At times it becomes tough to be able to separate precisely what consti-
tutes the “idea” and what is the “expression”. Also, in some cases, there are
very few ways of expressing a particular idea, the idea and expression are
intertwined to an extent it is impossible to demerge them. In such a case
the “Merger Doctrine” takes hold and the “Idea–Expression” itself becomes
“A Handbook of Copyright Law” published by the Department of Secondary Education
and Higher Education, Ministry of Human Resource Development, India . Available at (Retrieved: 6 June, 2007)
Subject to there being sufficient difference between the two expressions, so that one is
not the mere reproduction of the other.

3.2 History of Copyright Law

The London guild of printers, bookbinders, and booksellers known as the

Stationers’ Company was created by Royal charter in 1557 by the En-
glish monarch, Mary I. The Guild was organised as a monopoly such that
only Guild members were allowed to practice the art of printing. The master
and wardens of the society were empowered to search, seize, and burn all
prohibited books, and to imprison any person found to be printing without
a license. From 1557 to 1641, the English Crown exercised authority over
printing and the Stationers’ Company through the Star Chamber. After
the abolition of the Star Chamber in 1641, the English Parliament contin-
ued to extend the Stationers’ Company’s censorship/monopoly arrangement
through a series of ordinances and Licensing Acts between 1643 and 1692.
During its time, the Stationers’ Company developed a private system
for handling disputes between its members (sometimes referred to as a Sta-
tioner’s Copyright). Under this system, specific Guild members held monopoly
rights in a particular work that were treated as being perpetual. Although
Guild members could purchase a manuscript from an author, authors could
not become members of the Guild and were not entitled to any royalties or
additional payments after purchase. Members were allowed to buy and sell
rights over particular works to each other. As a method to keep track of which
members claimed rights in what works, the Guild required that copyrights
be recorded in a registration book at the Guild’s Hall. The Licensing Act of
1662 also required printers to deposit a copy of each work with the Guild to
prevent changes to the work after it was reviewed by censors. Many aspects
of the Stationers’ system were later incorporated into modern copyright laws.
Following the English Civil War, which was partly fought over the Crown’s
abuse of monopolies, the Stationers’ power was threatened when the last Li-
censing Act expired in 1694. Without their monopolies, London’s booksellers
faced an unregulated influx of cheap texts printed outside Britain, and in
Scotland, that began flooding the English market.
Finally, in 1710, the world’s first modern copyright statute was enacted—
The Statute of Anne, 8 Anne, ch. 19 (1710)18 .

See the Wikipedia article on ”History of copyright law” at http://en.wikipedia.
org/wiki/History_of_copyright_law (Retrieved 7 June, 2007)

3.2.1 Statute of Anne
The Statute of Anne19 is considred to be the world’s first modern copyright
statute. Although, the statute created a system of monopoly rights, it made
3 major changes in the way these rights came about and who enjoyed them:

1. it directly outlined a public copyright system that applied to the public

in general

2. recognized a copyright as originating in the author

3. placed a time limitation on the monopoly enjoyed by holders of a copy-

right. Specifically, the Act provided that an owner of the copyright in
any book already printed should have the exclusive right of publishing
it for twenty-one years. For works not yet published, the act provided
an exclusive right to publish for 14 years from the time of first pub-
lication, with the stipulation that the right could be extended by an
author for another 14 years.

It took some time for the concept of the “public domain” free of monopoly
rights, wherein works whose copyright had expired would fall into, and it
took the landmark case of Donaldson v. Beckett (1774) to reject the notion
of a perpetual common-law copyright.

3.2.2 Internationalisation of Copyright

There have been various traties and conventions signed amingst the countries
of the world to attempt to harmonise their laws and regulations so as to
afford some amount of protection to works in each other’s countries. India is
a signatory to the following:

1. Berne Convention (Berne Convention for the Protection of Literary and

Artistic Works) first adopted in Berne, Switzerland in 1886. It was re-
vised in Paris in 1896 and in Berlin in 1908, completed in Berne in 1914,
revised in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and
in Paris in 1971, and was amended in 1979. It set up a bureau to handle
Short title “Copyright Act 1709 8 Anne c.19”. Long title: “An Act for the En-
couragement of Learning, by vesting the Copies of Printed Books in the Authors or pur-
chasers of such Copies, during the Times therein mentioned”. See the Wikipedia article
at: (Retrieved: 7 June 2007)

the administrative tasks, which subsequently became the WIPO–World
Intellectual Property Organisation (now a UN agency)2021 .

2. Universal Copyright Convention (or UCC), adopted at Geneva in 1952,

is the other principal international convention protecting copyright. Set
up under the aegis of the UNESCO–United Nations Educational, Scien-
tific and Cultural Organization as an alternative to the Berne Conven-
tion for those states which disagreed with aspects of the Berne Con-
vention, but still wished to participate in some form of multilateral
copyright protection. With the growth of the WTO and TRIPS (see
below), the UCC has lost significance22 .

3. Rome Convention (Rome Convention for the Protection of Perform-

ers, Producers of Phonograms and Broadcasting Organisations) was
accepted by WIPO members on October 26, 1961. It was drawn up
in response to new technologies like tape recorders that made the re-
production of sounds and images easier and cheaper than ever before.
Whereas earlier copyright law, including international agreements like
the 1886 Berne Convention, had been written to regulate the circulation
of printed materials, this Convention covered performers and producers
of recordings under copyright—for the first time, copyright protection
was extended from the author of a work to the creators and owners
of particular, physical manifestations of intellectual property, such as
audiocassettes or DVDs23 .

4. Agreement on Trade-Related Aspects of Intellectual Property Rights

(TRIPS)24 is an international agreement administered by the World
Trade Organization (WTO) that sets down minimum standards for
many forms of intellectual property (IP) regulation. It was negotiated
at the end of the Uruguay Round of the General Agreement on Tariffs
and Trade (GATT) in 1994. It is a comprehensive agreement, not
See the Berne Convention at the WIPO website:
en/ip/berne/trtdocs_wo001.html (Retrieved: 7 June, 2007)
Read the Wikipedia article on Berne Convention at: http://en.wikipedia.
Works (Retrieved: 7 June, 2007)
The Wikipedia article on UCC is at:
Copyright_Convention (Retrieved: 7 June, 2007)
Read theWikipedia article at:
Convention (Retrieved: 7 June, 2007)
Read the TRIPS Wikipedia article at:

covering only copyright, but rather contains requirements that nations’
IPR laws must meet

copyrights including the rights of performers, producers of sound

recordings and broadcasting organisations
Geographical Indications including appellations of origin
Industrial Designs
Integrated Circuit layout-designs
Plant Varieties protection
Trademarks and trade dress
Undisclosed or confidential information.

It also specifies enforcement procedures, remedies, and dispute resolu-

tion procedures.
For copyright it stipulates

• Copyright terms must extend to 50 years after the death of the

author, although films and photographs are only required to have
fixed 50 and 25 year terms, respectively.
• Copyright must be granted automatically, and not based upon any
”formality”, such as registrations or systems of renewal.
• Computer programs must be regarded as ”literary works” under
copyright law and receive the same terms of protection.
• National exceptions to copyright (such as ”fair use” in the United
States) must be tightly constrained.

The copyright provisions of TRIPS are tied intimately to the Berne


Members are obliged to comply with the substantive provi-

sions of the Paris Act of 1971 of the Berne Convention, i.e.
Articles 1 through 21 of the Berne Convention (1971) and
the Appendix thereto.

with the following exception

Overview of TRIPS copyright provision at the WTO website:
english/tratop_e/trips_e/intel2_e.htm#copyright (Retrieved: 7 June, 2007)

However, Members do not have rights or obligations under
the TRIPS Agreement in respect of the rights conferred under
Article 6bis of that Convention, i.e. the moral rights (the
right to claim authorship and to object to any derogatory
action in relation to a work, which would be prejudicial to
the author’s honour or reputation), or of the rights derived
therefrom. 26

3.3 Rights under Copyright Law

The “bundle of rights” that the holder of the copyright gets under the Indian
Copyright Act, 1957 (as amended in 1994) include two types of rights:

Economic Rights: those rights whose exploitation may bring economic

benefits to the copyright holder. These rights can be exploited either by
the author, or they can partially or wholly assigned or licensed. These
rights include the right

• to reproduction
• to issue copies
• of performance
• of communication to the public
• to make any cinematograph film or sound recording in respect of
the work
• to translation
• to adaptation

Moral Rights or (Droit Moral) are special rights vested in the author be-
cause he is the creator. They are independent of the Economic Rights
and run parallel to them. Article 6bis of the Berne Convention has
recognised these rights and require member countries to provide them
to the author. In India, these rights are inalienable and cannot be
waived. These rights include

• Right to Paternity

See §4.2.1 for more on Moral Rights under the Berne Convention.

• Right to Integrity

This work will look in greater detail at the Moral Rights: what they
are, why they exist and how they exist in various jurisdictions starting
from Chapter 4.

3.3.1 How do the Rights work?

As already stated, these rights serve as a bundle of negative rights, that
is prevent others from enjoying the fruit that comes from exploiting these
rights. For example, only the copyright holder can issue copies (publish) or
get published a particular work. If someone else tries to publish said work
without permission of the copyright holder, then he can be enjoined from
doing so.
Also, no one can coerce the copyright holder into exploiting said work.
As with all systems, these monopoly rights are not absolute and have
certain checks and balances built in, especially considering the “public good”
theory of Intellectual Property (see §2.2). Exceptions exist in the form of “fair
use” provisions and certain uses (compulsory licensing) in the public interest.
Both civil and criminal remedies are available for instances of infringe-
ment. The civil remedies include injunctions and damages. In India copy-
right infringment is a cognizable offence punishable by imprisonment ranging
from 6 months to 3 years and/or a fine ranging from Rs. 50,000/= to Rs.

Chapter 4

A Survey of Moral Rights

The “Moral Rights” theory grants authors of copyrightable works certain

inalienable rights in their works that supplement the set of economic rights
traditionally granted to copyright holders in all jurisdictions. Such rights are
supposed to protect their moral or personal, non-economic interests. The
reasoning behind protecting such interests is the presumed intimate bond
between authors and their works, which are almost universally understood
to be an extension of the author’s personhood27 .
The term “moral right” derives from the French expression “droit moral ”
and is a misnomer in the sense that moral rights are neither the opposite of
immoral rights nor of legal rights. Instead, moral rights are meant to be the
opposite of economic rights, which is what the traditional set of copyright
entitlements is often called in Continental Europe2829 . The four basic rights
that are understood to form the core of the droit moral suite according to
French and German law are30313233 :

1. Right to publish – the right to decide whether, when, how and by whom
the work will be made public

2. Right to retract – the right to prevent a public dissemination of the

work prior to or after publication, provided the author meets certain
Rigamonti, 2006, p. 355.
See note 11 in Rigamonti, 2006, p. 355 and also note 15 in Gunlicks, 2001, p. 604 .
See note 15 in Rigamonti, 2006, p. 356 for the German term which translates to
“author’s right of personality”.
Gunlicks, 2001, p. 608.
Vetter, 2004, p. 650.
Rigamonti, 2006, p. 356.
Hansmann and Santilli, 1997, pp. 95–96.

3. Right of attribution – the right to receive credit for a published work in
the fashion that the author wishes
4. Right of integrity – the right to prevent or be compensated for any ac-
tions that mutilate, damage, or materially alter the substance of the
author’s original work and that do harm to the authors honor or repu-
tation; and
These rights are generally inalienable and not waivable34 .

4.1 Civil Law Concept of Moral Rights

As discussed above, and considering the “personhood” basis, moral rights are
rights of authors, which is to say that only those human beings who actually
create the work in question qualify as owners of moral rights. This excludes
corporate entities and employers who hire third parties to create works from
the ambit of moral right holders35 . These rights are meant to protect authors
who actually create the work in question as opposed to those who finance or
commission the creation of such work and who may qualify as initial copyright
owners under the work-for-hire doctrine36 . Interestingly, some regimes in
continental Europe do not recognise the work-for-hire doctrine37 .
In civil law jurisdictions, moral rights are treated as structurally similar to
economic rights and considered an integral part of copyright law. This is the
essence of the “droit d’auteur”(right of the author)38 approach to copyright,
which is generally viewed as the defining feature of Continental European
copyright theory.
Moral rights are inalienable in the sense that they can be neither trans-
ferred to third parties nor relinquished altogether. They are personal to
the author. If they extend beyond the life of the author (See Paragraph 2,
§4.2.1), they are passed on to the author’s heirs upon the author’s death in
accordance with the applicable local rules. This element of inalienability is
by far the most controversial characteristic of the civil law concept of moral
rights, because it interferes with the principle of freedom of contract between
authors and users of copyrightable works39 .
The UK allows waivers of the moral rights. For a fuller discussion, see Rigamonti,
2006, pp. 402–403
Rigamonti, 2006, p. 359.
Rigamonti, 2006, p. 360.
See note 44 at Rigamonti, 2006, p. 360
See Wikipedia article on French copyright law at:
French_copyright_law (Retrieved: 7 June, 2007)
Rigamonti, 2006, p. 361.

4.2 International Acceptance of Moral Rights
There is a significant schism in the way moral rights have been treated in
countries adopting the Common Law or“Anglo-American”legal systems (UK,
USA and derived legal systems) and those following the Civil Law or“Romano-
Germanic” systems (Continental Europe, notably France and Germany)40 .
The Civil Law countries have followed the Moral Rights orthodox view that
these rights are inalienable and non-waiveable, even perpetual in some juris-
dictions (France and Italy)41 , while the Common Law countries have been
hesistant in accepting them at all in their legal systems.
Classic examples of this are the UK, which despite being a signatory to
the Berne Convention42 since 1886, added statutory moral rights protection
only with the passing of the Copyright, Designs and Patents Act in 198843 .
The USA acceded to the Berne Convention only in 1988, a hundred years
after it was established. One of the reasons for not signing was objections to
the moral rights clause4445 . The US has a moral rights regime only for the
Visual Arts by virtue of the Visual Artists Rights Act enacted in 1990.
We will do some amount of comparison between how the rights that con-
stitute the “droit moral” work in both civil law and common law jurisdictions
in §4.3.
India, as a possible exception to the Common Law countries has had
moral rights on its statute for a long time.

4.2.1 Moral Rights under the Berne Convention

The Rome revision conference of 1928 added Article 6bis Moral Rights46 to
the Berne Convention (§3.2.2, Item 1), which reads as:

1. To claim authorship; to object to certain modifications and other deroga-

tory actions
Independently of the author’s economic rights, and even after the trans-
fer of the said rights, the author shall have the right to claim authorship
Gunlicks, 2001, p. 602.
Rigamonti, 2006, p. 361.
See 1
Rigamonti, 2006, p. 400.
Hansmann and Santilli, 1997, p. 97.
Vetter, 2004, pp. 656–659.
20726 (Retrieved: 7 June, 2007)

of the work and to object to any distortion, mutilation or other mod-
ification of, or other derogatory action in relation to, the said work,
which would be prejudicial to his honor or reputation.
2. After the author’s death
The rights granted to the author in accordance with the preceding para-
graph shall, after his death, be maintained, at least until the expiry of
the economic rights, and shall be exercisable by the persons or institu-
tions authorized by the legislation of the country where protection is
claimed. However, those countries whose legislation, at the moment of
their ratification of or accession to this Act, does not provide for the
protection after the death of the author of all the rights set out in the
preceding paragraph may provide that some of these rights may, after
his death, cease to be maintained.
3. Means of redress
The means of redress for safeguarding the rights granted by this Article
shall be governed by the legislation of the country where protection is

Paragraph 1 talks about the rights of Paternity and Integrity and also ensures
that the moral rights are independent of the economic rights and continue to
vest with the author even after the transfer of the same. Paragraph 2 says
that the protection term for the 2 moral rights be atleast as long as that for
the economic rights, with the caveat that countries whose legislation does
not provide protection (of moral rights) post the author’s death need not
continue to protect these rights. Paragraph 3 puts moral rights on an equal
footing with economic rights in the event of any infringement.

4.2.2 Moral Rights under TRIPS

As already discussed in §3.2.2, Para 4, the “Agreement on Trade-Related As-
pects of Intellectual Property Rights (TRIPS) while asking its members to
comply with the substantive provisions (Articles 1 through 21) of the Berne
Convention (1971), explicitly removed references to the moral rights obliga-
tions of the Berne Convention.

4.3 What Constitutes Moral Rights?

In the following sections, we look at closer detail at the four rights discussed in
the beginning. Side-by-side, we also look at how Common Law jurisdictions

that do not implement the specific moral rights also tend to give the same
effect as the droit moral.

4.3.1 Right of Disclosure

The right of disclosure entitles authors to decide when their works are com-
plete and when they are ready for publication and commercialization47 . Civil Law Jurisdictions

The French author is at complete liberty to control the manner and conditions
of publication and to avoid any non-consensual publication, courtesy Article
19 of the French copyright law which grants the sole right to publish the
work to the author. Hence, the right to publish is dependent on the author’s
express or implied (from the circumstances) consent.
Authors maintain a host of rights under French law and cannot be coerced
into publishing their work, for example, creditors are prohibited from seizing
an unpublished work without the author’s consent4849 , public lectures do not
in and of themselves constitute publication. The author also has a strong
interest in protecting his right to review and correct his work.
An abandonment of a work does not permit a third party to publish it.
An example is the case that involved an artists who became dissatisfied with
several painting and threw them out. They were recovered by someone, and
put up for sale, after being identified as the artist’s work. The artist sued
to prohibit the sale , and won on the argument that he had the sole right to
decide whether the artistic work could be disclosed to the public50 .
French copyright law allows an author to refuse to deliver his work to a
purchaser despite contractual obligations, though the author will be liable
for restitution and damages. The case of Whistler v. Eden, wherein the
American painter James McNeill Whistler, who had been commissioned by
Sir William Eden to paint a portrait of his wife, refused to hand it over after a
disagreement about the proper price, and Sir Eden sued for the painting.The
case went up to the highest court in France, the Cour de Cassation, which
affirmed the appellate court’s decision that Whistler could not be forced to
surrender the painting, that he was obliged to return the payment he had
already received, and that he was enjoined from using the painting without
Rigamonti, 2006, pp. 362–263.
Gunlicks, 2001, p. 614.
Rigamonti, 2006, p. 362.
Hansmann and Santilli, 1997, pp. 136—137.

rendering the face of Sir Eden’s wife unrecognizable5152 .
Also, the moment of delivery is not determined by actual delivery of the
work, but by the author’s decision that the work is completed.
In Germany, the right to publish is protected by Article 12 of the copyright
law and Article 6 reinforces the notion that a publication can occur only with
the author’s consent. No one can publish the work or a description thereof
without the author’s consent. This consent can also be implied, for example
a communication to a broad public audience can constitute a consensual
publication53 Common Law Jurisdictions

The “Right of Disclosure” also has parallels in Common Law copyright law,
having been protected in the UK since 173254 . Rigamonti in Deconstructing
Moral Rights, at 381:

One of the first known judicial statements mentioning the inter-

ests underlying moral rights in a common law context was made
by Lord Mansfield when he argued in favor of common law pro-
tection “of the copy prior to publication” in the 1769 landmark
case of Millar v. Taylor :

[B]ecause it is just, that an author should reap the pe-

cuniary profits of his own ingenuity and labour. It is
just, that another should not use his name, without his
consent. It is fit, that he should judge when to pub-
lish, or whether he ever will publish. It is fit he should
not only choose the time, but the manner of publica-
tion; how many; what volume; what print. It is fit, he
should choose to whose care he will trust the accuracy
and correctness of the impression; to whose honesty he
will confide, not to foist in additions.

The right has also had statutory protection under various US Copyright
Acts55 and other “unnamed common law right and a vague notion of property
to breach of confidence and trust. American courts followed the English
courts in applying the decisional rule underlying the right of disclosure by
Rigamonti, 2006, p. 373.
Hansmann and Santilli, 1997, p. 136.
Gunlicks, 2001, pp. 615—661.
Gunlicks, 2001, p. 609.
Gunlicks, 2001, p. 611.

acknowledging a right to prevent the unauthorized publication of a work”56 .
It was explicitly incorporated in 1976 so as to make American law conform
to the Berne Convention57 .

4.3.2 Right of Withdrawal

The right of withdrawal empowers authors to retract the economic rights
that they may have assigned or licensed to a third party in order to enable
that third party to exploit the work58 . Civil Law Jurisdictions

In the Civil Law Jurisdictions, this may only happen if the authors indem-
nify the other party to the contract in advance. This right is only available
to authors of published works and not to visual artists59 . Also, the right of
withdrawal may not be exercised for just any reason. The German copy-
right statute specifically states that the right of withdrawal can be exercised
only if authors can no longer reconcile the contents of their works with their
personal convictions, and the Italian copyright statute explicitly requires “se-
rious moral reasons”. Common Law Jurisdictions

A parallel in case of the United States is the limited right of retraction granted
by the Copyright Act that allows the author the right to void a contract
without cause after thirty-five years6061 .

4.3.3 Right of Attribution

The right of attribution entails three interrelated rights62 :

1. the right to claim recognition as the author of a work

Rigamonti, 2006, p. 383.
Till 1978, the economic rights available under American statutory copyright law were
limited to published works Rigamonti, 2006, p. 382
Rigamonti, 2006, pp. 362–263.
See Hansmann and Santilli, 1997, p. 139 and Hansmann and Santilli, 1997,
p. 141 for a possible explanation of why this is so.
Gunlicks, 2001, p. 648.
But, see Rigamonti, 2006, pp. 388—389 for a discussion on why both are not the
Gunlicks, 2001, pp. 620–630.

2. the right to use an alternative attribution—to remain anonymous or to
use a pseudonym

3. the right to prevent a false attribution, i.e., to prevent others from

inaccurately describing the author’s contribution to a certain work. Civil Law Jurisdictions

Right to claim recognition as the author of a work French law

requires that the author’s name appear on every copy of the work. It also
contains further and stricter attribution requirements like all advertisements
and publicity materials related to a work must give the author credit. Even
if he contracts to use a pseudonym or remain anonymous, the author can de-
mand recognition under his own name at any time and is entitled to damages
if the demand is ignored.
German copyright law provides that the “author shall have the right of
recognition of his authorship of the work” and that the author determines
“whether the work is to bear an author’s designation and what designation
is to be used.”
Both laws also require that the author must receive recognition every time
his work is quoted.
These provisions have certain limitations limitations. In Germany, when
the author has not expressly contracted to protect the right to attribution,
the right can be limited under certain circumstances–the author is precluded
from claiming authorship if the custom and usage of the industry, good faith,
or the nature of an employment relationship weigh against attribution.
French law limits the author’s his means of redress. In general, French
law gives a “broad right to sue, but a limited right to recover”. Often, the
author is entitled only to damages for a failure to attribute.

Right to use an alternative attribution Though French law does

not expressly protect the right to alternative attribution, certain provisions of
the French Copyright law make clear the author’s right to use a pseudonym or
to remain anonymous. This right is expressly protected under German law.
Both laws prevent the publisher from revealing the author’s true identity,
against his will, on the work or any copy.
Unlike French law, the German law binds the author to the terms of the
contract if an author expressly contracts to use an alternative attribution. An
exception applies to this scenario if the author must prove his authorship in
response to attacks on it, or if the work enjoys unforeseeable success. Absent

any express provision, the law will imply the right of an author to use his
real name instead of an alternative attribution whenever he wishes to do so.

Right to prevent a false attribution Both French and German copy-

right law grant an author the right to prevent the use of his name in con-
nection with a substantially altered work. However, neither country’s law
protects the right to prevent attribution for a work the author did not cre-
ate. This right is protected by the more general “law of personality”, similar
in some respects to the common law right to privacy. Common Law Jurisdictions

Right to claim recognition as the author of a work American law
protects the right to claim authorship in a number of ways starting from the
Copyright Act. After a transfer of copyright, the author maintains his right
to claim attribution, either through explicit contract clause(s) or implied
through absence of any contractual attribution clause(s)63 .
Even in the absence of claims under both copyright and contract, the
author can pursue a claim under the theory of unfair competition—“passing-
off” and “reverse passing-off”64 . Section 43(a) of the Lanham (Trademark)
Act65 can be used for this purpose6667 .

Right to use an alternative attribution The Copyright Act takes

for granted that an author can publish his work under an alternative desig-
nation, but the author does not have any express right to use a pseudonym
The failure to attribute can constitute a breach of contract, because attribution “nec-
essarily affects [the author’s] reputation and standing, and thus impairs or increases his
future earning capacity”: the author’s reputation is his “stock in trade” and the failure to
attribute can cause him “irreparable injury”Gunlicks, 2001, p. 621.
These terms are more often utilised in Trademarks rather in Copyright.
15 U.S.C. §1125(a) (1997)
Gunlicks, 2001, p. 622-624.
Given the need to keep separate the various fields of Intellectual Property Rights Law
(see various criticisms of the term “Intellectual Property”, e.g. 3), it may seem strange that
Trademark Law is being used to serve what is a function of Copyright Law (in the “droit
moral” regime). Though the use of Trademark in some cases could suffice (as Rigamonti
points out inDeconstructing Moral Rights, at 384-386 “To the extent that one accepts the
right of non-attribution as a moral right, however, English and American cases on point
are easy to find since the author’s right to object to false attribution of authorship is
widely recognized on the grounds of libel, passing off, invasion of privacy, and trademark
law.” arguing against the need for moral rights in the US), the consequences of the merger
of two different branches of IPR need to be analysed.

or remain anonymous68 . The author can control the manner of publishing
the work, including the attribution used, if he maintains the copyright. Else,
he can gurantee alternative attribution by express contract provisions. His
right to use a particular pseudonym will be protected under common law
and statutory unfair competition. It is unclear whether the author can pre-
vent a transferee from using his real name gainst his wishes, absent specific
contractual provisions69 .

Right to prevent a false attribution Under American law an author

can prevent the attribution to him of a work:

• that he did not create

• which departs substantially from his original work

• which inaccurately describes the author’s connection to the work

Originally common law enforced these protections as “independent, authors’

rights” and “to prevent fraud upon the purchasers”. Now, these independent
authors’ rights have been absorbed by the common law of unfair competi-
tion70 .

4.3.4 Right of Integrity

The right of integrity is often considered the most essential element of moral
rights. It protects two interrelated concerns7172 :

1. the author’s interest in preserving the integrity of his work, and

2. the author’s interest in preserving his reputation–a major factor in the

marketability of his works

These acts to prohibit modifications to the work in question without the

author’s consent. The Berne Convention (§4.2.1, Para 1) words this right as
“the author shall have the right . . . to object to any distortion, mutilation
or other modification of, or other derogatory action in relation to, the said
work, which would be prejudicial to his honor or reputation”.
Gunlicks, 2001, p. 626.
Gunlicks, 2001, p. 626.
Gunlicks, 2001, p. 628-629.
Gunlicks, 2001, p. 630.
Rigamonti, 2006, p. 364.

29 Civil Law Jurisdictions

Both France and Germany go beyond the requirements of Article 6bis of

the Berne Convention in that the modification in question does not have to
be detrimental to the author’s honor or reputation in order to qualify as a
violation of the right of integrity73 . But even here, it is tempered by practical
economic concerns. The laws in both countries require an author to accept
reasonable, good faith alterations necessitated by the medium in which the
work is presented. In essence, only unauthorized and unreasonable changes
to the substance of the work will incur liability.
French law generally obligates publishers to reproduce and present orig-
inal works faithfully and strictly, including the title and any prefaces or in-
troductions. But it also takes the interests of publishers into account by
allowing them to make necessary changes required by the medium of repro-
duction. Contracts between the author and the publisher must be interpreted
in good faith, an an author cannot make unreasonable demands based solely
on his moral right. The law also grants greater flexibility for derivative works.
By their nature, derivative works require independent creative effort by the
adapter and require alterations to the original work. Thus, the technological
nature of the medium and the creative rights of the adapter should be evalu-
ated when judging alterations. The law will allow changes that are necessary
to the adaptation as long as the substance of the work is not harmed74 .
German copyright law provides the author with the general right to pre-
vent “any distortion or any other mutilation of [the] work which would preju-
dice [the author’s] lawful intellectual or personal interests in the work.” The
statute also stipulates without the author’s consent, a licensee can not al-
ter a work, its title, or the designation of the author. But, it also provides
that the author is bound by good faith to accept necessary alterations. The
law makes no distinction between original and derivative works, thereby in-
dicating that any alterations made necessary by the authorized use of the
work are allowed. Also, the terminology used in the German provisions on
the right to integrity, consisting of words like “justified interests”, “consent”,
“good faith”, “necessary alterations”, “interests of others” etc. clarify that
the “author’s interests should be weighed against possibly opposing equally
justified interests”, and also take into account the custom and usage of the
respective industry75 .

Rigamonti, 2006, p. 364.
Gunlicks, 2001, pp. 638—641.
Gunlicks, 2001, pp. 641—642.

30 Common Law Jurisdictions

The Copyright Act protects the whole work, and also protects against any
unauthorized use of a substantial part of the work. This prohibition of copy-
ing another’s work has also served to protect the integrity of a work in Com-
mon Law copyright systems. Also, the copyright owner has the sole right to
make derivative works. Though these provisions can serve to protect the in-
tegrity of the work with regards to third-party infringements (cases of tort),
this right is not protected with regards to a contract scenario7677 .
In such a scenario, one can take recourse to the law of unfair competition
if “the use being made of her literary production [is] such as to injure the
reputation of the work and of the author” and amounts to a deception of the
public78 .
In Gilliam v. ABC 79 , the Second Circuit determined that Section 43(a)
applies when a work crediting an author has been altered “into a form that
departs substantially from the original work” without the author’s consent.
Furthermore, the court found that Monty Python had a viable claim for the
“mutilation” of its work. The court reasoned that authors must be able to
prevent “the mutilation or misrepresentation of their work,” because to hold
otherwise would contradict “the economic incentive . . . that serves as the
foundation of American copyright law”. Under Section 43(a), an author can
“vindicate [his] personal right to prevent the presentation of his work to the
public in a distorted form”80 .
Other claims like defamation (if the alterations are substantial and injure
the author’s reputation) and breach of contract (“the established rule is that,
even if the contract with the artist expressly authorizes reasonable modifi-
cations . . . it is an actionable wrong to hold out the artist as author of a
version which substantially departs from the original”81 .) can also arise.

Gunlicks, 2001, pp. 631—634.
Cyrill P. Rigamonti, Deconstructing Moral Rights. Harvard International Law
Journal , 47 Summer 2006:2 hURL:, pp. 386—
Gunlicks, 2001, p. 635.
Gilliam vs. ABC, 538 F.2nd cited at Rigamonti, 2006, pp. 386—387Gunlicks, 2001,
pp. 636—637
Gunlicks, 2001, pp. 636—637.
Gunlicks, 2001, p. 638.

4.3.5 Visual Artists Rights Act (VARA)
The Visual Artists Rights Act (VARA)82 , promulgated in 1990 is limited
to “visual art” which in this context “means a painting, drawing, print or
sculpture existing in at least one original and at most two hundred signed
and numbered copies”83 .
VARA allows the author to assert the right “to claim authorship”. It also
grants the author the right to “to prevent the use of his or her name” on a
work the author did not create or in the event of a “distortion, mutilation, or
other modification of the work which would be prejudicial to his or her honor
or reputation . . . ”. The Act does not provide a right to remain anonymous
or use a pseudonym84 .
The rights of integrity are provided as prevention of “any intentional dis-
tortion, mutilation, or other modification of [the] work which would be prej-
udicial to his or her honor or reputation. . . ”85 . The author also has the right
to prevent the destruction of “a work of recognized stature” incorporated
into a building, whether or not the destruction injures the author’s honor or
reputation86 .
The rights contained in VARA are personal to the author and non-
transferable. The author may however waive them be way of a signed, written
instrument. The instrument must specifically identify the work and the uses
of that work that are to be covered by the waiver. A mere transfer in own-
ership of the work does not constitute a waiver of the author’s rights. Thus,
unless waived, the author’s VARA rights remain vested in the work no matter
how often ownership is transferred. A broad limitation of the scope of the act
results from the exclusion of “works made for hire”. As with the copyright,
the rights rest with the employer87 .

4.4 Exceptions to, Waivers and Duration of

Moral Rights
In the preceding sections we have looked at the various rights and protections
that are considered part of the “droit moral” suite. We now look at what
specific exceptions and waivers exist in various regimes and also how long do
17 U.S.C. §106A (1997)
Gunlicks, 2001, p. 643.
Gunlicks, 2001, p. 644.
Gunlicks, 2001, p. 644.
Gunlicks, 2001, p. 644.
Gunlicks, 2001, p. 645.

these rights subsist.

4.4.1 Exceptions
Gunlicks points out in A Balance of Interests: The Concordance of Copyright
Law and Moral Rights in the Worldwide Economy, at 649, that members of
the public in France and Germany have the absolute right to use the work as
they wish in private. It is only when a public use of the work is made that
the moral rights protection kicks in. Both French and German law require
any public use of the work to give credit to the author, in keeping with the
Berne Convention.
French law provides a number of fair-use exceptions with regards to the
right of integrity. A work can be analyzed and quoted in various forms
of abridgement such as criticism, review, academic presentations, as well as
parody. Under German law fair uses under copyright must respect the right of
integrity; however, mere extracts, as well as necessary, good faith alterations
are permitted.
In France, the scope of the right of integrity is reduced to the mere protec-
tion of the author’s honor and reputation if the work is a computer program,
while in Germany, a separate statutory regime was established for motion pic-
tures and for works used in the production of motion pictures88 . In the UK,
the rights of attribution and integrity do not apply to computer programs, to
works made for hire, to works published in periodicals, or to collective works
of reference, and authors of musical works need not be named when the work
is publicly performed89 .

4.4.2 Waivers and Transfers

The Berne Convention is silent on the aspect of moral rights waivers. Hence,
there is wide variation between the Convention’s member states regarding
waivers of such rights. Many states e.g. France allow no waivers, others have
no specific provisions.
A general set of rules that has emerged from the case law in France and
Germany90 :

• that authors cannot legally relinquish or abandon the rights of attribu-

tion and integrity altogether,
Rigamonti, 2006, p. 377.
Rigamonti, 2006, p. 402.
Rigamonti, 2006, p. 377.

• that advance blanket waivers are unenforceable, and

• that narrowly tailored waivers that involve reasonably foreseeable en-

croachments on the author’s moral rights are generally valid.

The United Kingdom, on the other hand has an exceptionally generous waiver
regime. The CDPA91 allows authors and directors to validly consent to any
act that violates their moral rights. It also empowers them to fully waive
their moral rights in advance with a signed written instrument92 .
As per the Berne Convention “[i]ndependently of the author’s economic
rights, and even after the transfer of the said rights. . . ”, countries do not
allow these rights to be transferred.

4.4.3 Works Made for Hire

France and Germany do not generally apply the work-for-hire doctrine, ex-
cept in the case of computer programs created in the scope of employment93 .
But, according to Gunlicks in A Balance of Interests: The Concordance of
Copyright Law and Moral Rights in the Worldwide Economy, at 651, the laws
do allow a number of specific exceptions to moral rights for works-made-for-

the moral rights of the employee are waived in favor of the em-
ployer in certain circumstances. In France, moral rights auto-
matically belong to the employer for many works made for hire.
In Germany, the employer can reserve some moral rights for the
work by contract. And in some instances, German law implies
the consent of the employee to a waiver. Works prepared in the
normal course of business for the normal business purposes of
the employer are treated like works-made-for-hire in the United
States. And for motion pictures, German law deems the primary
authors “to have granted to the producer the exclusive right to
utilize” the work “in every known manner” and they can protest
only gross distortions of their contributions.

The UK too exempts works made from hire from the ambit of the rights of
attribution and integrity.
The 1988 Copyright, Designs and Patents Act
Rigamonti, 2006, pp. 402—403.
Note 44 at Rigamonti, 2006, p. 360 and Gunlicks, 2001, p. 651

4.4.4 Duration
Some European countries like France, Denmark, Italy and Portugal provide
for perpetual protection for moral rights. Germany and the UK let the moral
rights lapse with the economic rights94 . The rights provided under the US
VARA are only till the lifetime of the author95 .

4.5 Moral Rights in India

Moral rights in India have been codified at §57 of the Copyright Act,
195796 , under the heading of “Author’s Special Rights”, which reads:

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, mutila-
tion, modification or other act in relation to the said work which
is done before the expiration of the term of copyright if such dis-
tortion, 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 97 applies. Explanation.—
Failure to display a work or to display it to the satisfaction of the author
Gunlicks, 2001, pp. 653–654.
Rigamonti, 2006, p. 405.
Indian Copyright Act at: (Retrieved: 8
June, 2007)
§52 §§(1) clause (aa) reads as:
52. Certain acts not to be infringement of copyright.—
The following acts shall not constitute an infringement of copyright, namely:
(aa) the making of copies or adaptation of a computer programme by the lawful possessor
of a copy of such computer programme, from such copy—
(i) in order to utilise the computer programme for the purposes for which it was supplied;
(ii) to make back-up copies purely as a temporary protection against loss, destruction or
damage in order only to utilise the computer programme for the purpose for which it was

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), other

than the right to claim authorship of the work, may be exercised by
the legal representatives of the author.

Accordingly, India’s moral rights regime:

• confers the twin moral rights of attribution and integrity in conformity

with the Berne Convention (see §4.2.1),

• links the term with the term of the economic rights. The moral rights
lapse along with the copyright,

• exclude computer programmes under certain conditions,

• allows legal reprsentatives to exercise the right of integrity

4.5.1 Case Law

There have been two notable cases under India’s moral rights regime

4.5.2 Mannu Bhandari Case

The case of Mannu Bhandari Vs. Kala Vikas Pictures Pvt. Ltd. and Anr.98 ,
was amongst the first cases to discuss the author’s moral right of integrity.
The appellant, Mannu Bhandari, held that the movie “Samay Ki Dhara”
produced under assignment of filming rights of her Hindi novel “Aap Ka
Bunty”, was a mutilation and distortion of her work. The appellant“submits
that her image would be lowered down before the students, the research
scholars as also in the literary world and the public at large if distorted version
of her novel is allowed to be presented through the film”99 . An objection
of the author “is to the name of the film, Samay Ki Dhara. From the
correspondence between the parties it is prima facie clear that she had agreed
to this name in desperation, as the matters were not moving. The title
Samay Ki Dhara is so general as to suggest any social problem that face the
Indian society today”100 . The author objected to changes in the characters
and theme of the movie101 .
AIR1987Delhi13 or MANU/DE/0319/1986
AIR1987Delhi13, at §16
AIR1987Delhi13, at §19
AIR1987Delhi13, at §20, 21

Keeping the above in view, the court was holding on the view that if
certain changes, that did not “distort” the storyline (but were necessary for
adaptation to a new medium) were made and the title changed so as to give
attribution to the appellant, then the movie could be screened102 . But, a
settlement application was moved by which the respondents submitted that
they103 :

1. regret the changes made in the film and will delete the name of the
appellant and her novel “Aap Ka Bunty” from the credit (title com-
mercial and publicity) of the picture “Samay Ki Dhara”

2. That in the posters and other publicity of the said picture prepared
or used hereafter, they will not refer to or mention the name of the
appellant or her novel“Aap Ka Bunty” in any manner whatsoever.

The copyright in the novel “Aap Ka Bunty”, reverted to the appellant and
the appellant also relinquished any claims in the movie “Samay Ki Dhara”.

4.5.3 Amar Nath Sehgal Case

The landmark case regarding the moral right of integrity and preventing such
distortion and mutilation as would be prejudicial to the honour or reputa-
tion of the artist is that of Amar Nath Sehgal Vs. Union of India (UOI) and
Anr.104 . The case related to a “bronze mural sculpture—manifesting itself
having 140 ft. span and 40 ft. sweep on . . . the lobby of Vigyan Bhawan”105 ,
that the appellant had created under a commission from the respondent. The
sculpture was “pulled down and consigned to the store room of the Union of
India in the year 1979. This act of destruction of the mural was without the
permission, consent or authorization of the plaintiff”106 . The plaintiff filed
suit under §57 of the Copyright Act, 1957, “praying for declaration that the
plaintiff’s special rights under Section 57 of the Copyright Act, 1957 were vi-
olated by the defendants, for which the defendants should tender an apology.
A permanent injunction was prayed for to restrain the defendants from fur-
ther distorting, mutilating or damaging the plaintiff’s mural. Damages in the
sum of Rs.50 lacs towards compensation for humiliation, injury, insult and
loss of plaintiff’s reputation were prayed for. Lastly, decree for delivery-up
AIR1987Delhi13, at §26
AIR1987Delhi13, at §27
17(2005)DLT717 or MANU/DE/0216/2005
17(2005)DLT717 , §7
17(2005)DLT717 , §8

directing the defendants to return to the plaintiff the mural for restoration
at the cost of defendants was sought”107 .
Two issues relating to §57 of the Copyright Act, 1957 were framed108 :

2) Whether the plaintiff has rights under Section 57 of the Copy-

right Act,1957 in the impugned work although the copyright in
the same has been vested to the defendant?
3) Has the defendant violated the plaintiff’s rights under Section
57 of the said Act?

The court held109 :

Issues No. 2 and 3 are accordingly decided in favour of the plain-

tiff and against the defendants. It is held that the plaintiff has
a cause to maintain an action under Section 57 of the Copyright
Act, 1957 notwithstanding that the copyright in the mural stands
vested in the defendants. It is further held that the defendants
have not only violated the plaintiff’s moral right of integrity in the
mural but have also violated the integrity of the work in relation
to the cultural heritage of the nation.

This case has set a precedent for the moral right of integrity under §57 of the
Copyright Act, 1957.

17(2005)DLT717 , §11
17(2005)DLT717 , §14
17(2005)DLT717 , §59

Chapter 5

Whither Moral Rights?

Rigamonti in Deconstructing Moral Rights does an interesting comparative

analysis to conclude that the US need not follow the moral rights orthodoxy,
saying that “the enactment of statutory moral rights in the spirit of the civil
law approach has done little to increase protection for authors in the United
Kingdom and has done much to decrease the overall protection for authors
in the United States. Therefore, if the goal was to increase protection for
authors, it was a step in the wrong direction for common law countries to
introduce the civil law concept of moral rights into their legal systems”110 .
A similar analysis has been done by Gunlicks in A Balance of Interests: The
Concordance of Copyright Law and Moral Rights in the Worldwide Economy,
albiet 5 years earlier, and he reached the opposite conclusion, calling for larger
harmonization between US law and moral rights.
Other studies on moral rights include Hansmann’s economic analysis of
moral rights in Authors’ and Artists’ Moral Rights: A Comparative Legal and
Economic Analysis, Mira Sundara Rajan’s thoughts on how Moral Rights can
help in democratising culture in the Digital Age111 . Vetter talks about the
impact of moral rights on software development, especially on the develop-
ment of Free and Open Source Software (FOSS) in The Collaborative Integrity
of Open Source Software.
We see that Moral Rights are acquiring importance in the digital age,
with countries like UK and US, which did not believe in the moral rights
orthodoxy enacting statutes to give some sort of moral rights protections,
either to harmonise their legal systems with the rest of the world or otherwise.
Rigamonti, 2006, p. 412.
Moral Rights in the Digital Age - New Possibilities for the Democratisation of Culture

But, champions of Free Culture and copyright reform may decry the con-
cept of moral rights themselves, since the belief is on enrichment of the larger
public domain and building on what’s available, which moral rights possibly
tries to restrict. Moral rights concepts face challenges in the digital age,
because it may be difficult not to infringe them, especially the rights of at-
tribution and integrity, since digital works are “malleable” and easily altered.
But, this could be also one of the reasons why moral rights could be cham-
pioned. One of the ways in which some aspects of moral rights play a role is
in some software being developed as—”here, take this, use it, modify it, give
it away. But if you change something, don’t call it by the name I called it,
or don’t say I wrote all of it”. This is where rights of attribution, integrity,
and protection against false attribution all come in.
These are some of the questions that do come to mind regarding the
debate on moral rights:

1. Perpetual duration for Moral Rights, and using moral rights for the
purpose of preserving culture?
Some jurisdictions grant perpetual moral rights protection (see §4.4.4).
According to some studies112 , it seems that the perpetual protection
for moral rights seems to be for “safeguarding . . . the national cultural
heritage in the public interest”. If that is the case, then it might not be
advisable to use copyright and the moral rights to that end, but rather
separately as protection of cultural heritage. This could allow certain
uses for the copyrighted work , uses that cannot be envisaged in the
“droit moral” regime.
The case of Amar Nath Sehgal Vs. Union of India (UOI) and Anr. (§4.5.3)
is interesting because it also used artists moral rights for the purpose of
preserving cultural heritage. There have been arguments against why
this is not the right approach, e.g. Notes 107—108 at Rigamonti,
ibid., pp. 371—372.

2. Use of Trademark Law for certain Moral Rights?

It is interesting to note the use of Trademark law to get the same effect
as the “Right to Attribution”. This particular methodology common
in the US and UK, blurs the thin lines amongst the various types of
Intellectual Property Rights Laws, and it is instructive to consider the
Gunlicks, 2001, p. 654.

impact of this blurring on other related rights and also the concern of
“intellectual property” naysayers. See also §67.

3. Moral Rights in Software?

Though most jurisdictions (including India) limit the applicability of
Moral Rights in software (see §4.4.1), it is interesting to note under
what circumstances such suspensions occur. If they are only in the
context of work-for-hire, then what about the world of Free and Open
Source Software (FOSS)?
Vetter in The Collaborative Integrity of Open Source Software, 662-669
talks about why moral rights get attenuated in software— “software’s
dual character as both an expressive and functional work implies that
moral rights are less imperative. In the prevalent personality-theory
basis for moral rights, it is the expressive aspect of a work that embodies
the creator’s personality. The intuition is that if software is primarily or
even substantially functional, there is less need for a right of attribution
or integrity . . . software is inherently more malleable than traditional
works fixated in physical form. Computer programs are designed to be
modified, or easily modifiable. A right of integrity, where the author
can govern modifications, would be counterproductive to the sequential
and successive processes used to develop software.”113 .
He points out how “Even in their attenuated form, moral rights, and
specifically the right of integrity in its classic form, can present problems
for open-source software licenses”114 . He also looks at the moral rights
from another angle as being a tool to preserve the integrity of the Open
Source Software licensing agreement.

4. Moral Rights and Free/Open Source Software in India?

Section 57 of the of the Copyright Act, 1957 that talks about moral
rights in India makes a notable exception—not allowing moral rights
with regards to computer programs. But, how should the wording be
Does it include all computer programs or only the specific ones to
which “clause (aa) of sub-section (1) of section 52 (See footnote 97 on
Page 35)” applies, namely “utilise the computer programme for the pur-
poses for which it was supplied ”. If it is only to to run the program
for supplied purposes, that runs counter to “Freedom 0: The freedom
Vetter, 2004, p. 663.
Vetter, 2004, p. 664.

to run the program for any purpose”115 , the basic freedom enshrined in
the “The Free Software Definition”, one of the cornerstones of the Free
And Open Source Software movement.
It is an interesting question, anyways . . .

5. Treatment other than Copyright for Software and Digital Media . . .

As we are realising that traditional copyright protections need alot of
conditions and exceptions to be tagged on (for example, attenuating
moral rights, even in those jurisdictions, whose copyright systems are
based on “authors’ rights”) so as to make them appropriate for software.
It may be time to look at some other method for protecting software,
possibly even a sui generis method.
Dan Burk points out some of the issues with current software protection
in Copyrightable functions and patentable speech, while Davis et al. talk
about a new frameowrk to protect software in A new view of intellectual
property and software. This could be the basis for a copyright reform
to set up a regime more suitable for the Information Age.

The Free Software Definition:


Bell, Tom W., Copy Fighting. August 2002 hURL: http://www., Also published as: Indeli-
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