Exceptions under moral right of the Author – An analysis by Jayanta Kumar Lahiri

Abstract

While  delving  into the  moral rights in the law on copyright, the present  article  focuses in brief  the most  distinctive  features  and which of the them stands unique concerning  the concept of right and reason therefore. The moral right, notwithstanding its conceptual formidability and practicality, suffers from some kind of ambiguity and uncertainty in deciding kind of acts that amount to reputational damage of the author in relation to his work ultimately pushing the court to be the judicial umpire of the rival contending parties. That the harmonised standard  for deciding  the reputational damage of the author caused by  humiliating display of his work admittedly  is some what illusion but   the truth remains  that the  its absence  confounds the problem although  this aspect is not dealt in detail here. The article fleetingly discusses the effects of exception clauses on the efficacy of the moral right).      

Right, without punitive law against infringement, had little appeal to the conservative positivist jurists[i]. They consistently held that moral indefensibility of an act or omission, its severity and public abhorrence notwithstanding, if so facto  does  not confer  legal right to  compensation and relief  to  the aggrieved unless specific law provides so. Differently put, conduct arising out of moral aberrations will be unlawful against a set of enacted rules although opposite may not always be the only reasonable inference. Conversely, under ethical concept of Hindu raj dharma, moral shade of an individual conduct, enjoyed primacy over the strict legal façade of the act as understood under modern parlance, decided the compensatory approach of retribution.  Religious precepts, regardless of difference in tenor and emphasis, inherently prefer morality over other considerations in dealing human conduct.  The moral right carves out an exception to the approach to the classical concept of right for, among others, the reason being that the moral consideration germinates   enforceable right within particular area of intellectual creations.

The moral right, grounded specific principles is an individual right[ii]. The concept of moral rights originated in French law with three limbs namely, right of paternity, right of integrity and right of publication.  The right of paternity confers the author the right to claim authorship in respect of certain type of works, right to restrain others from claiming the authorship of those works and right to prevent the use of his name by others in connection with that other person’s work.  The right to integrity confers the owner the right to prevent distortion or mutilation of his work. The  fundamental  justification  of  moral rights is based on the premise that  the works of art  belong to their creators and the works reflect the personality  of the author or creator  and  the work being the embodiment of creator’s personality therefore  must be protected from distortion and mutilation.  From the point of enforceability, it is a branch among other forms of rights but characteristically  not akin to in other respects. The moral rights are essentially personal, non-economic in nature   and are not proprietary rights.. The author, ‘even after the transfer of copyright  enjoys the right  “to object  to  distortion , mutilation  of other modification of, or other derogatory action in relation to the said work, which will be prejudicial  to his honour and reputation’.[iii] The author receives no financial profit neither can assign moral rights even after assigning the economic rights of the work. But the author is entitled to claim damages and sue against infringement of moral rights against any person including the person to whom he transferred the copyright by assignment.

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