A writer has two types of rights in his/her work: moral rights and economic rights. Economic rights are most often brought up in a discussion on copyright law, as they could lead to direct commercial benefits for the writer as well as other parties involved in a transaction. As seen in the previous post, the rights to publish a work, make it available to the public, and make and distribute copies of that work are important rights for a writer to make a living. Although moral rights do not directly help the commercialisation of a writer’s work, they are essential to building his/her brand and identity as a writer.
Moral rights, like the economic rights of a writer, exist during the term of a copyright. After the death of the writer, his/her legal heirs may exercise these rights.
Moral rights are encapsulated in Section 57 of the Copyright Act, and consist mainly of two rights:
- The right to paternity, and
- The right to integrity.
The right to paternity is the writer’s right to claim that he/she is the author of the work, and to be attributed as the author of that work. However, the writer cannot claim any specific manner of attribution, and cannot claim damages or other action for non-attribution in the form desired by him/her. This right, based on its interpretation, may be wide enough to also prevent false attribution as the writer of another work.
The right to integrity is the right to object to distortion, mutilation or modification of the work which is prejudicial to the writer’s reputation. In case any such act has taken place, this right allows the author of the work to claim damages and restrain any further distortion of the work. While exercising this right, the writer must bear in mind that some modifications may be necessary for the purpose of editing, publishing or updating the work. The right to prevent modifications only extends to the right to prevent distortive modifications that either dishonour writer or the work itself.
Although not enumerated in Section 57, a writer also has the right to withdraw his/her from publication at any time, in the same manner as he/she has the right to publish the work. This right, like other moral rights, exists during the term of the copyright. If a writer puts his/her work in the public domain during the term of the copyright, or if the copyright term has expired, the right to withdraw a work cannot be exercised.
Moral Rights and Publisher Agreements
Moral rights continue to vest with the author even after assignment of the economic rights in favour of any other entity, including a publisher. The writer can exercise these rights at any time while the copyright subsists. However, as seen in the previous post, publishing agreements may impose certain conditions on writers, one of which often is a waiver of moral rights.
The only right which publishers usually allow the writer to retain is the right to be attributed as the author of the work. However, even the writer may have to waive even this right in certain situations, like writing under a pseudonym.
Also, since publishers usually take over the publication process and rights completely from the writer, they would not ordinarily allow the writer to retain the right to withdraw the work from publication, as this might result in a financial loss as well as loss of reputation to the publisher.
Publishers argue that a waiver of moral rights is essential to allow them to edit the writer’s work, be it a work of fiction, a collection of poems or short stories, or an academic work. While the process of editing, as is widely understood only requires to make minor changes to publish the book, publishers often hold much greater sway over the writer, and may compel him/her to make significant changes. These changes may include changing the ending of the story, changing story arcs for the main characters in a book, or determining which elements of a book should be carried over into future instalments in a series. In many cases, writers are willing to make these changes themselves, as the publisher is generally considered to have a better understanding of ‘what sells’.
However, with the expanding market for a writer’s works to be adapted into other media, like web series, television series, movies, and other live or recorded performances, the financial interest of publishers depends much more on their ability to control the creative elements of a book. Most publishing agreements require the writer to permit the publisher to determine how a book may be adapted, and how the author would be given attribution. But this does not render the writer’s moral rights unenforceable. For instance, courts have recognised the writer’s right to prevent a significant change in a movie which claims to be an adaptation of a book, and which is against the writer’s integrity.
Waiving Moral Rights
Unlike economic rights, which may be licensed or assigned to another entity, moral rights cannot be transferred. However, a writer may waive his/her moral rights, as copyright law in India does not prohibit the writer from doing so. If the writer does not waive these rights, any publishing agreement, whether through assignment or license, is subject to these rights. However, such a waiver would only be valid if it is voluntary, which is usually not the case as writers do not consider themselves to be in a favourable position while negotiating with publishers.
However, even if moral rights are voluntarily waived by contract, it is unclear whether a writer who wishes to enforce these rights in a court would be entirely barred from doing so. In a famous case in India involving the moral rights of a sculptor, he was allowed to regain possession of his mural, which the government had commissioned and subsequently removed.
Enforcing Moral Rights
A writer may enforce his/her moral rights by filing a suit against the infringer. Remedies available to the writer include injunctions mandating attribution, injunctions preventing distortion of the work, and damages. In countries like the United States, which do not directly recognise moral rights of writers, the right to prevent false attribution is an important instrument in enforcing a writer’s rights to his/her reputation.
However, as these rights are recognised in India, writers would benefit by paying closer attention to waiver clauses in publishing agreements, and negotiating with publishers to enable these rights to be retained by the writers rather than waived.
This post is authored by Ashwini Arun (Associate, BananaIP Counsels).
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