Moral rights of authors and performers

1. The international source: Berne Article 6bis

Article 6bis of the Berne Convention, inserted at the Rome revision of 1928, requires members to protect the author’s right, independently of economic rights and even after their transfer, 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 work which would be prejudicial to his honour or reputation. TRIPS Article 9(1) incorporates Articles 1 to 21 of Berne but expressly excludes the rights under Article 6bis, so moral rights cannot be enforced through WTO dispute settlement. That exclusion was made at US insistence.

2. Section 57: the text and its amendments

Section 57(1) gives the author, independently of copyright and even after assignment, the right:

• (a) to claim authorship of the work (the right of paternity or attribution); and
• (b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the work, if it would be prejudicial to his honour or reputation (the right of integrity).

The 1994 amendment narrowed clause (b). Before it, the clause covered any distortion, mutilation or modification, and separately “any other action in relation to the said work” prejudicial to honour or reputation. The 2012 amendment removed a time limit: the author’s integrity right can now be exercised after the expiry of the copyright term as well. Section 57(2) lets the legal representatives of the author exercise the rights, except the right to claim authorship.

An Explanation to section 57(1) says that failure to display a work, or to display it to the satisfaction of the author, is not an infringement of these rights. Adaptation of a computer programme under section 52(1)(aa) is also excluded.

3. The Indian cases

Mannu Bhandari v. Kala Vikas Pictures (Delhi High Court, 1986)

The author of the Hindi novel Aap Ka Bunty had assigned film rights. The film “Samay Ki Dhara” made changes she objected to, including a changed ending. The court held that section 57 gives the author protection even against an assignee, and that the modifications permitted to a filmmaker are only those required by the change of medium. Changes that distort the story so as to harm the author’s reputation could be restrained, and the court directed changes to the film before release.

Amar Nath Sehgal v. Union of India (Delhi High Court, 2005)

The sculptor had made a large bronze mural for Vigyan Bhawan, Delhi, commissioned by the Government. In 1979 it was pulled down and stored in a godown, where it was damaged. Sehgal sued. The court held that the destruction of a work could be the ultimate form of mutilation, and that section 57 must be read in light of India’s cultural heritage and its obligations under Berne. It declared his moral rights infringed, ordered the return of the remnants and awarded damages. The court treated the moral right as protecting the cultural value of the work as well as the author’s personal interest.

Raj Rewal v. Union of India (Delhi High Court, 2019)

The architect of the Hall of Nations at Pragati Maidan sought to restrain its demolition. The court refused. It held that an architect’s right of integrity in a building cannot be used to stop the owner of the land from demolishing it, and that the Explanation and the owner’s rights in property limit section 57 in the case of architecture. The case is read as confining Sehgal: destruction of a building at the owner’s choice is not actionable mutilation.

4. Moral rights of performers (section 38B)

The 2012 amendment gave performers, independently of their economic rights and even after assignment, the right to be identified as the performer (unless omission is dictated by the manner of use), and the right to restrain or claim damages for any distortion, mutilation or other modification of the performance that would be prejudicial to reputation. Removing portions for editing, or to fit the recording within a limited duration, is not treated as prejudicial. This follows Article 5 of the WIPO Performances and Phonograms Treaty and Article 5 of the Beijing Treaty.

5. Comparative position

The question whether moral rights can be waived by contract is open in India. The Act does not provide for waiver, and the personality theory suggests the right is inalienable. Industry practice nonetheless uses waiver clauses, and whether a court would enforce one against an author who later objects to a distortion has not been settled.

6. Moral rights and AI

Training generative models on an author’s work, or producing outputs in an author’s style, raises questions of integrity and attribution that section 57 was not written for. A distorted output attributed to the author might be actionable under section 57 as well as under passing off or personality rights. Indian courts have recently protected well-known persons against AI-generated imitations through personality rights rather than copyright, for example in Anil Kapoor v. Simply Life India (Delhi High Court, 2023).

How this is examined

Moral rights appear as an essay or as part of the question on author and owner. Start with Berne Article 6bis and the TRIPS exclusion, set out section 57, discuss Mannu Bhandari, Sehgal and Rewal, add performers, and close with the comparison and the waiver debate.