Amar Nath Sehgal vs Union of India
AMAR NATH SEHGAL VS UNION OF INDIA EQUIVALENT CITATIONS: 117 (2005) DLT 717, 2005(30) PTC 253 Del INTRODUCTION Most of the debate on the rights of the author revolves around the economic rights and consequently, the moral rights have been overshadowed. Under the Indian Copyright law, the author has a lifelong, exclusive right to (a) claim the authorship of the work (b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the work which is done before the expiration of the term of copyright, is such distortion etc would be prejudicial to his honor or reputation. Even after parting away with the economic rights, the author does not lose the moral rights over the work. This is one such rare but far reaching case that the Moral rights are seldom a matter of legal dispute. Copyright is a form of intellectual property protection granted under Indian law to the creators of original works of authorship such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form, including a machine readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings. Copyright law protects expressions of ideas rather than the ideas themselves.
FACT OF THE CASE Mr. Amar Nath Sehgal is the world-renowned sculpture and has been conferred with several awards for his beautiful creations and contribution to the Indian heritage. In the year 1957, the Government of India commissioned Mr. Sehgal for the creating bronze mural for the most prominent International Convention Hall in the Capital of the Country i.e. A building was conceived to be the hub of international and national conferences 'Vigyan Bhawan''. The Bronze sculpture of about 140ft. span and 40ft. sweep took five years to complete and was placed on the wall of the Lobby in the Convention hall. This embellishment on a national architecture became a part of the Indian art heritage.
In 1979 the Indian government decided to remove the mural from the place where it was on display. The sculpture was taken to a warehouse. In the process of moving and storage, the mural was badly damaged and some pieces, including the portion of the work where the name of the author was inscribed, simply disappeared. When he became aware of what had happened, Amar Nath Sehgal notified the government of his objections to the treatment of the sculpture, asking them to deal with it in an appropriate manner. The government did not respond to this request. Sehgal proceeded to file for an injunction to prevent the government from causing further harm to the mural. His claim was based on section 57 of the Indian Copyright Act, setting out the “special rights” of authors, generally known in the common-law world as moral rights ie filed a petition in the Delhi High Court for recognition and enforcement of his rights on the mural. Instead of filing their written statement, the defendants made an application under Section 34 of the Arbitration Act, 1940 seeking stay of proceedings in the suit to facilitate reference of disputes to arbitration for adjudication, in view of arbitration agreement between the parties and for vacation of ad interim injunction granted on 29th of May, 1992. He seeks an exparte interim order restraining the defendants from causing further loss and injury to the mural.
ISSUES FOR DETERMINATION The main issues for determination before the Court were (a) whether the suit was barred by limitation (b) whether Mr. Sehgal had moral right over the mural even when the copyright vested with the UOI
Whether the plaintiff has rights under Section 57 of the Copyright Act, 1957 in the impugned work although the copyright in the same has been vested to the defendant?
(c) Has UOI infringed moral rights of Mr. Sehgal (d) whether Mr. Sehgal has suffered any damage and relief
PROVISIONS Section 57 of the Indian Copyright Act Section 57 of the Indian Copyright Act provides for the protection of authors’ moral rights in India. It is based on the provisions of Article 6 (bis) and meets the basic standards for the protection of moral rights set out in the Berne Convention. In conformity with Article 6 (bis), section 57 (1) of the Indian Copyright Act protects authors’ rights of attribution. It also provides protection exceeding the basic requirements of the Berne Convention for authors’ rights of integrity.
Under section 57 (1)(a), literary and artistic works are protected from “any distortion, mutilation or other modification.” The author need not prove that these actions are prejudicial to his reputation. Rather, any modifications of a work to which the author
objects appear to constitute prima facie affronts to his reputation. Specific acts which can damage an author’s standing are addressed separately, in section 57 (1)(b). In broad terms which transcend the language of Article 6 (bis) ,this section provides that an author may seek to restrain, or claim damages in relation to, “any other action. “This “action” need not be expressly derogatory of the author’s work, but the court must determine whether it is “prejudicial to his honour or reputation.”
Section 57 does not explicitly indicate the duration of moral rights protection. However, section 57(2) provides for the legal representatives of an author to exercise moral rights on his behalf. Since the need for moral rights to be asserted by persons other than the author can only arise in the event of the author’s death, the protection of moral rights in Indian law, by implication, must continue at least until the expiry of the author’s economic rights. Article 6 bis of the Berne Convention enjoins the members of the Berne Union to provide legal recognition for the moral rights of attribution and integrity in a work in which copyright exits. Article 6 bis of Berne Convention reads :3
''(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and 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 honour or reputation. (2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where protection is claimed. (3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.'' Article 1 and 4 of the Convention read: ''Article 1 For the purposes of this Convention, the term ''cultural property'' means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and property of artistic interest, such as
pictures, paintings and drawings produced entirely by hand on any support and in any
material (excluding industrial designs and manufactures articles decorated by hand); original work of statuary art and sculpture in any material; original engravings, prints and lithographs;
Article 4 “The States Parties to this Convention recognize that for the purpose of the Convention property which belongs to the following categories forms part of the cultural heritage of each State: Cultural property created by the individual or collective genius of nationals of the State concerned, and cultural property of importance to the State concerned created within the territory of that State by foreign nationals or stateless persons resident within such territory;'' Section 34 of Arbitration Act, 1940 - Application for Setting Aside Arbitral Award
(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (ii) the arbitral award is in conflict with the public policy of India (2) An arbitral award may be set aside by the Court only if –
The party making the application furnishes proof that a party was under some incapacity The Court finds that the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so request by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such take action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
CONTENTIONS BY THE APPELLANTS 1. Whether the suit was barred by limitation Since suit was one for violation of his moral rights which would last for his lifetime and having not waived the same, suit could not be said to be barred by limitation his moral rights subsist throughout his life. All through the interposing period of 13 years, he was seeking administrative relief. Further, after the mural was removed, he approached various functionaries of the Government of India for redressed and at no stage the government of India unequivocally refused the claim of the plaintiff of having moral rights in the integrity of the mural. It was nonredressed which led to the filing of the suit. So the suit was not barred by limitation. 2. whether Mr. Sehgal had moral right over the mural even when the copyright vested with the UOI 5
The evidence on record is that the mural sculpture was authored by the plaintiff was not denied by the defendants. His work has been displayed internationally in over 20 countries. He is the recipient of Lalit Kala Academy Award and the President of India Award for excellence in Art and Culture. The international eminence of the plaintiff could be gauged by the fact that the Government of India commissioned him to install the mural on the walls of Vigyan Bhavan for the reason that International Conferences were and are continued to be held in Vigyan Bhavan. 3. Has UOI infringed moral rights of Mr. Sehgal The right to integrity is violated; the remedy is not limited to injunction or damages. The author has the right to preserve the mutilated work as well. UOI has infringed moral rights of Mr. Sehgal. He maintains that having discharged his contractual obligation and the mural having admittedly remained displayed for nearly 18/20 years at Vigyan Bhavan before the same was pulled down, the defendants cannot seeks to invoke the arbitration clause. 4. Whether Mr. Sehgal has suffered any damage The mural created by him was a part of the national heritage and hence was valuable not only for him but for the entire country. The mutilation of the work was prejudicial to his reputation as it reduced the volume of the corpus of his work. The defendants did not even attempt to urge that the destruction and damage to the mural was debatable. Thus the present suit was filed praying for declaration that the plaintiff's special rights under Section 57 of the Copyright Act, 1957 were violated by the defendants, for which the defendants should tender an apology. A permanent injunction was prayed for to restrain the defendants from further 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 directing the defendants to return to the plaintiff the mural for restoration at the cost of defendants was sought.
CONTENTIONS BY THE DEFENDANT 1. Whether the suit was barred by limitation
That cause of action accrued to the plaintiff to file the suit in the year 1979. Being filed in the year 1992, after a period of 13 years from the date when cause of action arose. So the suit was barred by limitation since period of limitation was three years under Limitation Act. 2. Whether Mr. Sehgal had moral right over the mural even when the copyright vested with the UOI Mr. Sehgal cannot be the owner of the mural as it was owned by them and had a right to consign the same to a store room and further contended that the plaintiff was paid for the work. The plaintiff had assigned his copyrights to the UOI and having purchased the same, the defendants are under no fetters while dealing with the mural in question. 3. Has UOI infringed moral rights of Mr. Sehgal No infringement has risen as the points being agitated in the suit constitute disputes referable to arbitration and in the given situation; the plaintiff cannot be allowed to continue with the suit as the proceedings are liable to be stayed to enable the parties to seek resolution of disputes between them by arbitration.
4. Whether Mr. Sehgal has suffered any damage Assignment of his copyright in favor of the defendant in admitted by the plaintiff. Further assignment of his copy right, his moral rights comprising, 'right of paternity' and 'right of integrity', which are independent of copyright, continue to vest in his as there was no express or implied assignment or waiver thereof in the said agreement. The assertion is that the mural was damaged in a fire in the Vigyan Bhavan. It is declaration made that the plaintiff would have no right to recreate the mural at any other place anywhere in the world including the right to sell the same.
INTERPRETATION In the case of Vishaka and Ors. V. State of Rajasthan and Ors, the Supreme Court read international conventions not being inconsistent with our laws to interpret the guarantee of
gender equality under our constitution and in the absence of domestic law occupying the field, formulated guidelines. It has to be noted that as originally enacted, Section 57 of the Copyright Act, 1957 was very widely worded because of the fact that the words ''would be prejudicial to his honour or reputation'' which found mention in sub Clause (b) of sub Section (1) of Section 57 were not qualifying sub Clause (a) of sub Section (1) of Section 57. Further, the words ''any other action'' which found mention in sub Clause (b) implied that the action could be other than a claim for damages or a claim for injunction.
JUDGMENT On the question as to whether the suit was barred by limitation, the Court ruled that the correspondence between UOI and Mr. Sehgal contain the acknowledgement by the former of the right of the latter over the mural and therefore the suit is not barred by limitation. The Court examined at length the national and the international framework for protection of the moral rights of the Author. The Court was of the opinion that it is a narrow view the derogatory treatment of the creative work would mean deletion to, distortion, mutilation or modification to, or the use of the work in setting which is entirely inappropriate. The broad view is that mutilation is nothing but the destruction of the work as to render it imperfect and is therefore prejudicial to the reputation of the author. Recognizing the moral rights of the Mr. Sehgal over the Mural, ruled: "Mural whatever be its form today is too precious to be reduced to scrap and languish in the warehouse of the Government of India. It is only Mr. Sehgal who has the right to recreate his work and therefore has the right to receive the broken down mural. He also has the right to be compensated for the loss of reputation, honor and mental injury due to the offending acts of UOI". The plea relating to assignment of copyright bears no relevance to the issues involved. No express or implied assignment or waiver of his special rights/moral rights by the plaintiff, in relation to the mural, in favor of the defendants is pleaded to constitute the subject of the agreement containing the arbitration clause. The issues involved in the suit are, thus, beyond the 8
purview of the agreement, and, therefore, cannot be held to arise out of or in any way connected with the contract. As the issues involved in the suit travel beyond the scope of the agreement, the same are held not referable to arbitration. The application under Section 34 of the Arbitration Act is dismissed. The Court passed mandatory injunction against the UOI directing it to return the mural to Mr. Sehgal within two weeks from the date of judgment. Court passed a declaration transferring all the rights over the mural from UOI to Mr. Sehgal and an absolute right to recreate the mural and sell the same. The Court also granted damages to the tune of Rs.5 lacs and cost of suit to Mr. Sehgal against UOI.
CASES REFERRED In KPM Sobharam v/s M/s Rattan Prakashan Mandir, AIR 1983 Del. 461 (468, 469), The plaintiff, an author of certain books instituted the suit against the defendants for injunction, restraining them from printing, publishing and selling the specified books, rendition of accounts for the illegal gains made by the defendants for all unauthorized publications, and, for damages under the provisions of sections 55 and 57 of the Act. The plaintiff claimed that the defendants mutilated and distorted the original works of the plaintiff by publishing various books in modified form in gross violation of the plaintiff’s copyright. The plaintiff alleged that the defendants had changed the original works’ title and made a distortion and mutilation of the plaintiff’s work prejudicial to the plaintiff’s reputation. The plaintiff claimed that he never gave any authority to the defendants to print and publish the books in that manner. The court granted injunction restraining the defendants from printing, publishing and selling the goods written by the plaintiff till final disposal of the suit. In Smt. Mannu Bhandari, Appellant v. Kala Vikas Pictures Pvt. Ltd. and another, AIR 1987 Delhi, The court observed that “section 57 lifts the author’s status beyond the material gains of copyright and gives it a special status. An author’s right to restrain distortion etc. of his work is not limited to a case of literary reproduction of his work. The restraint order in the nature of injunction under section 57 can be passed even in cases where a film is produced based on the 9
author’s novel. The language of section 57 is of the widest amplitude and cannot be restricted to ‘literary’ expression only. Visual and audio manifestations are directly covered. The court observed that by reading the contract with section 57, it is obvious that modifications, which are permissible, are such modifications, which do not convert the film into an entirely new version from the original novel. The modifications should also not distort or mutilate the original novel. The fact that Mannu Bhandari is the author of the story will be published in all the credits. This is for giving due recognition to the author’s reputation.” The court therefore, directed certain modifications and deletions to the film before screening it. In Phoolan Devi v. Shekar Kapoor, (1995-PTC Del), The plaintiff claimed that the basis of the film, being a novel dictated by the illiterate plaintiff herself had been considerably mutilated by the film producer. The plaintiff sought a restraint order against the defendant, from exhibiting publicly or privately, selling, entering into film festivals, promoting, advertising, producing in any format or medium, wholly or partially, the film “Bandit Queen” in India or elsewhere. Granting an injunction Vijendra, Jain J. held, that “the defendant had no right to exhibit the film as produced violating the privacy of plaintiff’s body and person. The balance of convenience is also in favour of restraining the defendants from exhibiting the film any further as it would cause further injury to the plaintiff. No amount of money can compensate the indignities, torture, and feeling of guilt and shame which has been ascribed to the plaintiff in the film. Therefore, the defendants were refrained from exhibiting the film in its censored version till the final decision of the suit.”