– Sahibnoor Singh Sidhu
On 21st February 2005, the Delhi High Court did something unheard of: it held that an artist would continue to enjoy ‘moral rights’ in their creation even after the copyright in the artwork had been transferred to another entity. The case was argued by the lawyer for the famous Indian sculptor Amar Nath Sehgal on first principles, with no Indian precedent to rely upon. The ratio of this case, since then, has attained a life of its own, with it being argued in many other cases. However, despite its novelty and contemporary relevance, the doctrine seems to not have travelled very far. All reported judgments where the doctrine of moral rights has been applied emanate from the same High Court- Delhi. In this short note, I discuss the main elements that make up the doctrine and how it engages with property rights. I also discuss how this case has been used in successive judgments and what it means for the rights of artists vis-à-vis owners of artworks.
The Amar Nath Sehgal Case: Stepping into Terra Nullius
Mr Sehgal had been commissioned to create a bronze art structure to adorn the buildings of Vigyan Bhawan, New Delhi in 1957. However, after the passing of a significant amount of time during which the bronze mural became a very renowned piece of art, it was unceremoniously removed from the main entrance of the Vigyan Bhawan and shunted into a storage room. Aggrieved by this action, Mr Sehgal tried very hard to convince the various government officials that the mural was a significant piece of art, one of the best he had ever created and must be reaffirmed in its earlier position. However, these pleadings were to no avail, and he was made to run from pillar to post. He then sued the Union of India before the Delhi High Court under section 57 of the Copyright Act, 1957 which provides special moral rights to the author of an artwork. These special rights continue to be retained by an author even after the copyright in the said artwork has been assigned to someone else.
Section 57 of the Copyright Act, 1957 provides that regardless of whether an author has parted with the copyright either wholly or in part, the author continues to have certain rights. First, the author has the right to be recognised as the author of the artwork. Second, the author has the right to restrain damage or distortion to the artwork which can tarnish their reputation and also claim compensation. However, the fact that an artwork is not displayed at the author’s choice of venue would not be tantamount to such damage or distortion.
While Mr Sehgal argued that the artwork was of national significance and its relegation to the storerooms in broken pieces was detrimental to his reputation, the Union of India claimed that as the owner of the mural, it had the absolute right to do whatever it wanted to do with it. The court sided with Mr Sehgal. The Delhi High Court held that Mr Sehgal was an artist of international repute and celebrity. The breaking down of the mural into parts which experts said “could not be joined back together” and dumping them in the storeroom was tantamount to a distortion or destruction of the artwork which negatively affected Mr Sehgal’s reputation. The court cited many international conventions and treaties to which India was a party and held that since they were not against the national laws of India, they could be used to guide the court’s opinion. The Union of India was directed to return all the pieces of the mural to Mr Sehgal to do with it what he pleases. The court expunged all rights that the Union of India had over the mural and also awarded INR 5,00,000 in costs.
However, the court did not discuss what would be the implications of moral rights being recognised vis-à-vis the property rights of the owner of an artwork.
Moral Rights: The Doctrine’s Life Outside the Sehgal v India Courtroom
In this part of the article, through the use of two subsequent cases decided by the Delhi High Court where petitioners, who were artists had argued that their respective artistic creations had either been damaged or expropriated. The court reached different conclusions in these two cases. Through a descriptive account of the judgments, followed by a critical analysis, this article will highlight the lack of objectivity and clarity in the doctrine of moral rights, one of the main reasons why other High Courts are reluctant to use it.
The first case is Arun Chadha v. Oca Productions Pvt. Ltd. Arun was a famous director of nationalistic and patriotic documentaries and had bought the right to produce a TV show based on a novel called Kasturi Kundal Bassey from Maitreyi Pushpa. Since Arun roped in the Ministry of Human Resource Development (MHRD) to co-produce the film, he transferred the rights to the novel (to make it into a TV show) to the MHRD. After the completion of the film, they used an editing studio in Mumbai which stole the show and released it under its own name on a different channel. While the government ministry was contemplating, Arun approached the Delhi High Court with a suit under section 57. The court reiterated that moral rights would continue to be available to the authors even after the economic rights have been assigned to someone else. The court, just like in the Amar Nath Sehgal banked upon Arun’s “high standing in the field” as a basis to conclude that such a theft and modification of the show he directed was violative of his rights under section 57.
In the second case, that of Raj Rewal v Union of India, the Delhi High Court was hearing a suit filed by a renowned architect Raj Rewal who had designed the Hall of Nations, Hall of Industries and Nehru Pavillion at the Pragati Maidan in New Delhi. The government had decided to tear down these structures and build new buildings in the same space. To stop the destruction of what Mr Rewal argued was an internationally acclaimed piece of India’s architectural history, he argued that the tearing down of the buildings was tantamount to a violation of his moral rights. While the court was sympathetic to his emotions, it held that despite Mr Rewal’s high standing in the field of architecture, his moral rights could not extend to stopping the owner of the land from changing its usage. The court held, without much juristic authority that a work of architecture when transformed into a building had a very different existence when compared to other works in which copyright subsists. The court exploited the loopholes in this doctrine to conclude two key decisions. First, it held that moral rights could not be allowed to trump the property rights of an individual. Second, it held that while distortion might have been harmful to Rewal’s reputation, its complete destruction could not be held to be prejudicial to his honour.
Conclusion
It is clear from these three cases that the Delhi High Court has not been able to jurisprudentially establish moral rights as a discernible category of rights which could be consistently claimed by artists and objectively granted by the courts. One of the central flaws in the Amar Nath Sehgal case was the court’s omission to explain how the property rights of the owner of an artwork would be legally balanced against the moral rights of an author who claims that their artwork has been modified or defiled in a manner that would tarnish their honour. This omission was exploited by the Union of India in the Raj Rewal case (2019).
There is also a lot of impetus on the relative prestige or celebrity status of the author of the artwork under contestation. The court seems to signify that the capability of an artist’s honour to take a reputational hit is directly proportional to their “high standing” in the community. This would inevitably leave out a large number of artists who the court’s subjective opinion would not hold to be of “high standing”. The reasonableness of this distinction is questionable.
The doctrine has been around for 20 years now, but the only reported judgments on this case emanate from the Delhi High Court alone, signifying a reluctance on the part of other High Courts or the Supreme Court to accept the doctrine in its present form. Further clarifications and details are needed to sustain artistic moral rights as legally enforceable rights which may emanate if the policymakers establish a Bonafide dialogue with lawyers and stakeholders including artists, buyers, art galleries, auction houses, art evaluation experts etc.