SUBHASH BHUTORIA
Since the day iconic installation “Flight of Steel” sculpted by the veteran artist Jatin Das was being called “Murga Chowk” (Rooster Circle), it lost its relevance in the eyes of law makers, if not public at large. On March 2, 2012, the installation was rather brutally removed from the roundabout to make way for a proposed flyover and was found in bits and pieces, dumped as scrap in a local zoo. Even though the artist had issued a protest note immediately after the incident, neither the authorities tendered any apology nor was the artist compensated for the humiliation and loss. On the contrary, being completely oblivious of the laws, the authorities persisted that “We paid for this and so have a right to shift it. A needless controversy has been created on the issue of copyright.” In early 2019, the parties had entered into a settlement and besides re-erection of the sculptor, Steel Authority of India had agreed to pay an honorarium of INR 15,00,000 to Mr. Jatin Das for repairing and restoring the sculptor. The Court has kept the matter pending to decide upon the question of law in the petition.
In 2005, the Delhi High Court adjudicated upon a matter involving a 140 feet high Mural, which was created by the renowned Indian Muralist, Late Mr. Amarnath Sehgal, at the lobby of Vigyan Bhavan. While adjudicating the issue of violation of moral rights, the Court remarked that “In a country rightly proud of its creativity and ingenuity, men who can hardly distinguish the heads of Venus from those of Mars cannot be allowed to decide the fate of artists who create our history and heritage. The cry is ''IIs ne Passernot Pas'' and in such a situation Indian Courts will always be found dynamic and responsive”. The Court deliberated upon India’s commitment to International Conventions and held that it would be the obligation of the State (India) to honour it's declarations, particularly in case of works of art, which has acquired a status of cultural heritage of the nation. The Court further observed that mutilation is prejudicial to the artist’s honour and reputation and hence is violative of her/ his moral rights. The suit was decreed in Mr. Sehgal’s favour, upholding his Moral rights as granted under the Copyright Act, 1957 as also, damages to the tune of INR 5,00,000.
For the benefit of our readers, author’s rights of integrity and attribution are recognised under Section 57 of the Indian Copyright Act. Regardless of the actual ownership of the artwork, the author, including an architect, can claim paternity rights in the work and can seek restraining orders or damages against any distortion, mutilation or modification of her/ his work, or any such act which can cause damage to the author’s reputation. This provision emanates from India’s responsibility under Article 6bis of the Berne Convention for the protection of literary and artistic works. Berne Convention A similar, yet limited provision exists under the US Code, popularly known as Visual Artists Rights Act, 1990 (VARA). It is debated that the US, which is largely vocal about intellectual property rights, had enacted a restrictive code to balance its international commitment under Berne Convention with the country’s socio-economic needs and hence is restricted to the rights of visual artists.[1] The authors, though, can claim legal rights against breach of privacy, defamation, unfair competition et al. Indian law, quite like its European counterparts, has a wider amplitude and extends the protection across all class of artists. It is worth mentioning here that the US Court has extended moral rights under VARA, to even temporary artworks of recognized stature and as a matter of fact, awarded significant damages to the aerosol artists.
However, in 2019, the Indian moral right provision was nit-picked by the Delhi High Court, which held that the moral rights of an architect cannot supersede the proprietary right of the land/ building owner. As a consequence of this decision of the Court, architect cannot ‘object’ to mutilation of her/ his work, to protect her/ his honour and reputation. Interestingly, the Court held that moral rights are merely statutory rights, while right to enjoy one’s property is a fundamental right, granted under the Indian Constitution and hence is a stronger right. This observation is clearly in contrast with the French doctrine,Le Droit d’Auteur, which ties the author to its creation, inseparably and naturally. In a first, the Court has taken a more utilitarian view, thus deviating from the author-centric provision of moral rights under the Indian copyright law. The Court has equated the inalienable moral rights of an architect with statutory rights, which, to our understanding, is not the purpose and intent of Section 57 under the Indian Copyright Act, 1957…The most sacred, the most personal of all properties is the writer’s work, the fruit of his intellect[2].
TheRaj Rewal dispute also deals with an interesting issue of cultural heritage and this aspect will be covered by Art Law India, in another post, soon.
[1] Where is the Morality? Moral Rights in International Intellectual Property and Trade Law, Elizabeth Schere, Fordham International Law Journal, Vol. 41, Issue 3, 2018 accessible at https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2703&context=ilj
[2] Le Chapelier, quoted in Claude Colombet, Propriété littéraire et artistique (Dalloz, 5th Ed. 1990)