Malaysian case presaged expansion of moral rights

Moral rights differ from copyright in the sense that copyright protects property rights, which entitle authors to publish and economically benefit from their published works, while moral rights safeguard personal and reputational rights, which permit authors to defend both the integrity of their works and the use of their names. In countries that legally recognize moral rights, authors have redress to protect any distortion, misrepresentation or interference of their works that could negatively affect their honour.

The doctrine of moral rights is based on the idea that authors have a special bond with their own creative work and are recognized as the “soul” of their work. The important underlying principle is that damage to the reputation of an author is something apart from infringement of the work itself.

Section 57 of the Copyright Act, 1957, embodies the principle of moral rights in Indian law. There have been various judicial pronouncements of Indian courts on the “special rights” embodied under this section, in cases such as Amar Nath Sehgal v Union of India (2005) and Mannu Bhandari v Kala Vikas Pictures Pvt Ltd and Anr (1986).

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Sculptor vindicated

In nearby Malaysia, this principle was enunciated in 2010 by the Kuala Lumpur High Court in the case of Syed Ahmad Jamal v Dato Bandar Kuala Lumpur. The plaintiff in this case, the late Syed Ahmad Jamal, was a highly respected and internationally renowned artist who was commissioned to design and complete a sculpture entitled Lunar Peaks by United Malayan Banking Corporation (UMBC) and the surrounding landscape on government land in 1985. He constructed a unique plinth and duly ascribed the authorship of the sculpture and the surrounding landscape to himself.

In 1986, Lunar Peaks and the surrounding landscape was presented to the defendant as a gift from UMBC to the residents of Kuala Lumpur. Modifications were carried out in 2000 without notifying the plaintiff or seeking his consent. The plinth was removed, and the defendant failed to identify the plaintiff as the author of the work.

‘Monstrous concoction’

Experts testified that the modifications carried out to the work were “grotesque”, “made it look ghastly” and “something of great aesthetic beauty was transformed into a monstrous concoction”. The plaintiff filed an application in the High Court of Malaya, Kuala Lumpur, claiming infringement of his moral rights under section 25(2) of the Copyright Act, 1987.

The high court after examining various expert witnesses, upheld the contentions of the plaintiff. The court held that moral rights focus on safeguarding the author’s integrity and reputation and prevent any person from presenting a work without identifying the author or under a name other than that of the author.

The removal of the plinth had resulted in failure to identify the plaintiff as the author of the work.

Two aspects

The court laid down that moral rights consist of: (1) the right to be identified as author (the right of paternity); and (2) the right of integrity. The right of integrity of the author is the right to object to derogatory treatment of the work. The question was whether the modifications amounted to distortion or mutilation which significantly altered the work, and might be such as may have reasonably affected the plaintiff’s reputation.

It was held that the modification made by the defendant had significantly altered the character and spirit of Lunar Peaks and had completely destroyed the delineation in form and the serenity intended by the plaintiff, and that the significant alterations had completely removed all the traces of the plaintiff’s artistic work.

The court held that these moral rights are alienable rights and are exercisable during the subsistence of the copyright in the work and at the option of the author only, regardless of whether copyright is vested in the author at the time of the complaint.

The court awarded exemplary damages for infringement of the plaintiff’s moral right of 750,000 ringgit (US$236,000) and declared that the plaintiff had a right to recreate Lunar Peaks at any other place.

Changes in India

In India, the scope and ambit of the Copyright Act, 1957, has been greatly expanded by the recently enacted Copyright (Amendment) Act, 2012. The new act broadens the moral rights that authors enjoy over their work and extends the same rights to performers by insertion of section 38B in the 1957 act.

The author’s special rights are extended indefinitely as opposed to the earlier provision limiting these rights to the term of the copyright. Also, legal representatives of long-deceased authors will have the right to judge whether a new work adversely affects that author’s reputation and institute proceedings to protect the deceased author’s rights.

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Esha Harkisandas is an associate at Bharucha & Partners.