MORALS VS ECONOMIC RIGHT IN COPYRIGHT LAW

Submitted by – DigvijayaSrivastava Submitted to –Prof. Dr. S.C. Roy

Roll no – 1525, 7th semester, BA. LLB. Faculty of Intelectual property law

FINAL DRAFT SUBMITTED IN PARTIAL FULFILMENT OF COURSE TITLED CORPORATE LAW FOR
COMPLETION OF BA.LLB. (HONS.)

SEPTEMBER 2019

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR,
PATNA (BIHAR)
 1.1. Objectives –
The aim of this research paper is to present –

1.To critically analyse the concept of economic and Moralsright in a copyright .

2.To study about the provisions related to economic and Moralsright in a copyright

1.2. Hypothesis –
Intelectual property right granted in form of copyright offers dual protection namely
economic and Moralsprotection.

1.3 Research Methodology –

The researcher will use doctrinal method of research. The doctrinal sources for this research
paper arebooks, websites, journals, articles written by many authors, along with online research.

1.4 Sources of data collection –

The researcher will be using primary as well as secondary sources of data collection for
collecting the data regarding this project.

1.5 Limitation –
This research project has certain limitations i.e. Time and monetary limitations, as the research
has to be done in prescribed time.

2 Tentative Chapters –

1. Introduction
2. A brief Indtroduction about concept of copyright.
3. Indian provisions relating to Economic and Moralsright in a copyright
4. Conlusion & suggestions
1.) Introduction –
In the earlier era, only tangible right were considered to be right, intangible property was
not given any due as it was not at all developed at that point of time. But as the printing
press developed with advancement of time, the need to protect the right of the authors
deepened further. It is so badly required because every creation requires time, energy and
effort. The time involved varies greatly between projects. It may vary from a few minutes
to a few years. In addition, any creative works also requires certain amount of real capital
and of course the education or knowledge. All these things add up to a huge investment
on the part of any creative professional. Thus, it is necessary to recognize and respect the
intelectual creations of a creator. Although many of the legal principles, governing
intelectual property right, have evolved over centuries, it was not until the 19th century
that the term intelectual property began to be used. It was in the late 20th century that it
became common in the most part of the world. The World Intelectual Property
Organization(WIPO)1 was established, in 1967, as an agency of the United Nations.
Since then the the term really began to be used in the United States. There is an extensive
international system for defining, protecting, and enforcing intelectual property right,
comprising both multilateral treaty schemes and international organizations such as Trade
Related Aspects of Intelectual Property Right (TRIPs), World Intelectual Property
Organization (WIPO), World Customs Organization (WCO), United Nations
Commission on International Trade Law (UNCITRAL), World Trade Organization
(WTO) and European Union (EU). Copyright literally means right to copy.Granting
copyright seeks to protect the creative endeavor of an owner. Copyright gives an
exclusive right to the owner to do certain acts in relation to literary, dramatic, musical,
and artistic workss, cinematography and sound recordings. Copyright is valid till the life
of the originator plus 50 years after his death. In the case of cinematographic works, the
copyright is valid until 50 years after the works has been made available to the public
while for photographic workss 25 years after the making of the works.Today, one of the
most debated area of discussion in the world is whether or not intelectual property right

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 have made an obstruction to recognized Human Right in the world. Therefore, in this
paper I wish to discuss copyright law which is the most important area in the Intelectual
Property Law regime, and its impact on Human Right as a whole Intelectual Property
Right once granted or obtained offer dual protection, which consists of the right to
economic exploitation of the creation by the right holder and the protection of the
creator’s non-pecuniary interests.2

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2.)Brief Introduction about the concept of Copyright

Copyright leterally means the right to make copies. Section 14 of the Copyright Act talks about
the scope of copyright. Section 14 in the Copyright Act, 1957 Meaning of copyright.—For the
purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act,
to do or authorise the doing of any of the following acts in respect of a works or any substantial
part thereof, namely:14. Meaning of copyright.—For the purposes of this Act, “copyright” means
the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the
following acts in respect of a works or any substantial part thereof, namely -in the case of a
literary, dramatic or musical works, not being a computer programme,— to reproduce the works
in any material form including the storing of it in any medium by electronic means, to issue
copies of the works to the public not being copies already in circulation,to perform the works in
public, or communicate it to the public; to make any cinematograph film or sound recording in
respect of the works;to3 make any translation of the works; to make any adaptation of the
works; to do, in relation to a translation or an adaptation of the works, any of the acts specified in
relation to the works in sub-clauses (i) to (vi); In the case of a computer programme,— to do any
of the acts specified in clause (a); (ii) to sell or give on commercial rental or offer for sale or for
commercial rental any copy of the computer programme: (ii) to sell or give on commercial rental
or offer for sale or for commercial rental any copy of the computer programme" Provided that
such commercial rental does not apply in respect of computer programmes where the programme
itself is not the essential object of the rental.In the case of an artistic works,—to reproduce the
works in any material form including depiction in three dimensions of a two dimensional works
or in two dimensions of a three dimensional works; to communicate the works to the public; to
issue copies of the works to the public not being copies already in circulation; to include the
works in any cinematograph film;to make any adaptation of the works; to do in relation to an
adaptation of the works any of the acts specified in relation to the works in sub-clauses (i) to

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(iv);In the case of a cinematograph film,— to make a copy of the film including a photograph of
any image forming part thereof;to sell or give on hire or offer for sale or hire, any copy of the
film, regardless of whether such copy has been sold or given on hire on earlier occasions;To
communicate the film to the public;In the case of a sound recording,— to make any other sound
recording embodying it; to sell or give on hire, or offer for sale or hire, any copy of the sound
recording, regardless of whether such copy has been sold or given on hire on earlier occasions; to
communicate the sound recording to the public. Explanation.— For the purposes of this section,
a copy which has been sold once shall be deemed to be a copy already in circulation.As IPR
constitute primarily property right, the term Economic Right refers to the exclusive right of the
right holder to authorise or prohibit the reproduction, distribution, exportation or importation, or
other exploitative activities, such as rental and lending, public performance, communication to
the public and adaptation in cases of copyrighted works or use and storage in cases of
trademarks, of the by IPR protected creation by third parties, which have not previously obtained
a license, within the boarders of the states in which the intelectual property right has been
granted or obtained.The concept of MoralsRight relies on the connection between a person and
their creation, as Moralsright constitute the right of the creator to protect the integrity and
ownership of their works to maintain the “indestructible creational bond” that exists between
their personality and their creation, and as such can only be held by a natural person. The scope
of Moralsright varies depending on the state’s cultural conceptions of authorship and ownership,
the ratio for the protection of IPR and the type of creation for which protection has been grated
or obtained. However, it usually includes the right to paternity for inventors, the right to
attribution and right to object to false attribution for authors, the right to publish or divulge a
works, to object to alterations or destruction of the original works, the right to object to excessive
criticism, the right to withdraw a works from circulation, and the right to dictate forms and
means of performance for copyrighted works.4Whereas Economic Right can be freely
transferred, this is not the case for MoralsRight, which can be merely waived in some
jurisdictions.Section 13 of copyright on the other hand talks about things in which copyright
subsists. Section 13 in the Copyright Act, 1957. Workss in which copyright subsists. Subject to

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the provisions of this section and the other provisions of this Act, copyright shall subsist
throughout India in the following classes of workss, that is to say,— original literary, dramatic,
musical and artistic workss; cinematograph films; and sound recording .sound
recording." Copyright shall not subsist in any works specified in sub-section (1), other than a
works to which the provisions of section 40 or section 41 apply, unless,— in the case of a
published works, the works is first published in India, or where the works is first published
outside India, the author is at the date of such publication, or in a case where the author was dead
at that date, was at the time of his death, a citizen of India; in the case of an unpublished works
other than works of architecture, the author is at the date of the making of the works a citizen of
India or domiciled in India; and 2[works of architecture], the author is at the date of the making
of the works a citizen of India or domiciled in India; and" in the case of works of architecture,
the works is located in India. works of architecture, the works is located in India."
Explanation5.—In the case of a works of joint authorship, the conditions conferring copyright
specified in this sub-section shall be satisfied by all the authors of the works. Copyright shall not
subsist— in any cinematograph film if a substantial part of the film is an infengements of the
copyright in any other works; in any sound recording made in respect of a literary, dramatic or
musical works, if in making the sound recording, copyright in such works has been infringed.
sound recording made in respect of a literary, dramatic or musical works, if in making the sound
recording, copyright in such works has been infringed." The copyright in a cinematograph film
or a 1[sound recording] shall not affect the separate copyright in any works in respect of which
or a substantial part of which, the film, or, as the case may be, the sound recording is made.In the
case of works of architecture6, copyright shall subsist only in the artistic character and design and
shall not extend to processes or methods of construction.

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 3.) Indian provisions relating to Economic and Moralsright in a copyright

The Copyright Act, 1957 provides both economic and Moralsright to authors. Economic right are
those right which help the author to commercially exploit his creation while morals right are
those right which relate to protection of personality of the author and integrity of this works, and
similar matters.3 These right have been recognized by the Berne Convention, 1886, the TRIPS
and various domestic laws. A notable difference brought under the TRIPS is that the Member
States do not have any obligation to protect Moralsright of authors; the obligation is confined to
economic right as per Article 9 of TRIPS. The copyright subsists in original literary, dramatic,
musical and artistic workss; cinematographs films and sound recordings. The authors of
copyright in the aforesaid workss enjoy economic right u/s 14 of the Act.7

The right are mainly, in respect of literary, dramatic and musical, other than computer program,
to reproduce the works in any material form including the storing of it in any medium by
electronic means, to issue copies of the works to the public, to perform the works in public or
communicating it to the public, to make any cinematograph film or sound recording in respect of
the works, and to make any translation or adaptation of the works.

In the case of a computer program, the author enjoys in addition to the aforesaid right, the right
to sell or give on hire, or offer for sale or hire any copy of the computer program regardless
whether such copy has been sold or given on hire on earlier occasions. In the case of an artistic
works, the right available to an author include the right to reproduce the works in any material
form, including depiction in three dimensions of a two dimensional works or in two dimensions
of a three dimensional works, to communicate or issues copies of the works to the public, to
include the works in any cinematograph works, and to make an adaptation of the works.

In the case of a cinematograph film, the author enjoys the right to make a copy of the film
including a photograph of an image forming a part thereof, to sell or give on hire or offer for sale

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or hire, any copy of the film, and to communicate the film to the public. These right are similarly
available to the author of sound recording.

In addition to the abovementioned rights, the author of a painting, sculpture, drawing or of a

manuscript of a literary or dramatic or a musical works, if he was the first owner of the
copyright, shall be entitled to have a right to share in the resale price of such original copy
provided that the resale price must exceeds rupees ten thousand.

The economic right8 of the author are enumerated in Section 14, mainly, and the Moralsright are
provided via Section 57 of the Copyright Act, 1957 Economic right are those right which help
the author reap economic benefits. These right have been recognized in one form or the other
since the fifteenth century.3 As per Section 14 of the Copyright Act, 1957, different right are
recognized for the workss considering its nature. The section provides that it is the exclusive
right of the author to do or to authorize the doing of the acts provided there under. The important
right generally recognized by all types of workss under the Indian statute that attracted much
judicial interpretation includes the reproduction right, right of distribution and right to
communicate works to the public. The Right of Reproduction In all types of works, i.e., literary,
dramatic, musical, artistic, cinematograph film and sound recording, the exclusive right to
reproduce the works is with the author. There is an exclusive right to prevent copying and
reproduction of the works is the most fundamental, and historically the oldest, right of a
copyright owner. Though the Copyright Act has recognized this right in all types of works, the
terminology used is different and thus is the ambit of the right. The Act has neither defined the
term ‘reproduction’ nor the term ‘copying’ nor has it laid down the difference between these two.
The terms ‘reproduction’ and ‘copying’ have been used simultaneously though reproduction
encompasses a wider range of acts. It was held by the House of Lords in Ladbroke Ltd v William
Hill Ltd6 that reproduction means copying, and does not in any case include cases where an
author or compiler produces a substantially similar result by independent works without copying.
It must also be noted that to constitute reproduction, copying need not be in toto; even substantial

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reproduction will amount to reproduction. Reproduction also means making a copy in a different
form, even if such copy is not easily perceptible. Right of Distribution Apart from the right to
reproduce the works, the author is also vested with the right to distribute the works. It is the right
to put copies of the copyrighted works into the commercial market22 i.e. it relates to the control
over dissemination of actual physical copies of the works. The scope and extend of this right is
not uniform i.e. it differs with the works. Once copies are in circulation the right no longer exists
i.e. the right gets exhausted. The principle of exhaustion is dealt in Article 6 of the TRIPS23,
under General Provisions and Basic Principles. According to the exhaustion principle, once the
intelectual property right holder has sold a product to which its IPRs are attached, he cannot
prohibit the subsequent resale of that product, as his intelectual right in that product are said to
have been ‘exhausted’ by such sale. 9This is also known as the ‘First Sale Doctrine’, especially in
the United States. Exhaustion can be of three types:

National exhaustion- where the author loses the right to control the re-sale of the product in that
particular nation. Regional exhaustion- where the author loses the right to control re-sale of the
product over a specified region but can exercise such right beyond such region. International
exhaustion- where the author loses the right to control re-sale of the product anywhere in the
world after the first authorized sale. International exhaustion is the most widely accepted
principle; regional exhaustion is mostly accepted in the European Community while national
exhaustion is generally recognized by national laws. The exhaustion principle gives rise to what
is commonly called as ‘parallel imports’. This is applicable in respect of all types of goods,
which include copyrighted workss. This raises the interesting question as to whether there is a
right to importation under the Copyright Act, 1957. The Copyright Act 10expressly provides that
no person shall be conferred with any right under copyright than the right specifically guaranteed
under Section 16 of the Act and Section 14, which provides the right; there is no right as the right
of importation. Right to Communicate Works to the Public Another important right conferred on
the author of a works is the right to communicate his works to the public.37 The exclusive right

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to do this vest with the author, irrespective of the nature of the works.38 Change in technology
has brought change to the nature of communication and also to the notion of ‘public’. This has
enabled basically three kinds of communication, such being public performance, being carried on
in the presence of an audience, transmission through cable networks and also wireless broad
casting. And the right to communicate the works through all these means vests exclusively with
the author. To understand the ambit of this right it is necessary to understand the meaning of the
words ‘communication’ and ‘public’. The Section 2 (ff) of the Copyright Act, 1957 11 has
defined the term ‘Communication to Public’ to mean making the works available to the public
for their enjoyment, irrespective of whether they actually enjoy it. This it appears is intended to
cover transmission over computer networks. The Act has specifically provided that
communication through satellite and other cable means will also come within the purview of
communication to public. The Bombay High Court through its judgment in Garware Plastics and
Polyester Ltd, and others v M/s Telelink and others39 tried to bring out the meaning of the term
‘communication to public’. In this case the plaintiffs were producers of cinematograph films and
the defendants were cable operators who telecasted those films, for a prescribed fee, without
authorization of the plaintiff which was challenged by them as violating their right under Section
14 of the Copyright Act, 1957. The question before the Court was whether the act of the
defendants would amount to communicating the plaintiffs works to public. The Court brought
out a test to find out what would amount to ‘communication to public’ and held that the criteria
to decide it are: Character of the audience and whether it can be described as public or private, -
The audience is private or public in relation to the owner of the works,

There are three basic “Morals right” of an author. These are: The right of paternity, and Right of
integrity and right to claim.The right of paternity refers to the right of an author to claim
authorship of works and a right to prevent all others from claiming authorship of his works. The
right of integrity empowers the author to prevent distortion, mutilation or other alterations of his
works, or any other action in relation to said works, which would be prejudicial to his honor or
reputation. The proviso to Section 57(1) provides that the author shall not have any right to

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restrain or claim damages in respect of any adaptation of a computer program to which Section
52 (1)(aa) applies (i.e. reverse engineering of the same).It must be duly noted that failure to
display a works or to display it to the satisfaction of the author shall not be deemed to be an
infringements of the right conferred by this particular section. The legal representatives of the
author may exercise the right conferred upon an author of a works by Section 57(1), other than
the right to claim authorship of all the works.Morals right are right that the creator of a works is
automatically entitled to and which no one else can claim. The Moralsright of works can remain
with the creator even after their death. Morals right exist alongside copyright in certain types of
works. Generally, Morals right remain with the author of a works or pass to the author’s estate
on death. Unlike copyright, Morals right cannot be assigned (legally transferred). However, they
are frequently waived.The existence of Morals right raises a very important additional element in
the negotiation and drafting of certain agreements. Unfortunately, for many authors, the
transfer/license of a particular copyright is often accompanied by the insistence of the purchaser
on the waiver of those Morals rights. Relating to duty or obligation; pertaining to those intentions
and actions of which right and wrong, virtue and vice, are predicated, or to the rules by which
such intentions and actions ought to be directed; relating to the particular practices, manner, or
conduct of men as social beings in relation with each other, as respects right and wrong, so far as
they are properly subject to rules12.The definition of Morals right is given under many different
laws. Morals right are the embodiment of the the concept of natural rights of any artist has over
what he has created. Morals right are personal legal rights that belong to the creator of copyright
works and can not be transferred, assigned or sold.Morals in other words-“Morals right are the
right individual creators have in relation to a particular copyright works or films they have
created. Morals right are separate from the economic right of the copyright owner, such as the
right to reproduce the works or communicate it to the public.”Morals right finds expression in
Section 57 of the Copyright Act, 1957 which is in accordance with Article 6bis of the famous
Berne Convention.13 They are the author's or creator's special right which includes the right to

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paternity and the right to integrity.The right to paternity is a right of the author to claim
authorship over his works and have it attributed to him. On the other hand, the right to integrity
permits the author to restrain or claim damages in the event of any distortion, mutilation,
modification or any other untoward act done to his works. However, it is essential that such act
in question should prejudice the honor and reputation of the creator or author and such act should
be done before the expiry of the term of copyright in the works.Though initially intended to
protect only literary workss, the concept of Moralsright was later extended to even artistic,
musical, dramatic and cinematograph films as well.Moralsright were given importance by the
government of india in the year 1957, the Government of India commissioned a certain Mr.
Sehgal to create a bronze mural for the Vigyan Bhavan, the most prominent International
Convention Hall in New Delhi. The bronze sculpture in question was about 140 ft. span and 40
ft. sweep and had taken almost five years to complete. On completion, it 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.However, in 1979, the mural was pulled down and consigned to the
storeroom of the Union without notice or permission or authorization of Mr. Sehgal. When Mr.
Sehgal came to know of this ill treatment, he made representations to the particular concerned
government authorities for restoration of the mural, but to no avail.However, the question here is
whether Mr. Sehgal has any right on the sculpture once it has been handed to the person who had
commissioned itThis case of Amarnath Sehgal v. Union of India 14brought to the forefront
probably for the first time the debate over the Moralsright of authors and creators. Amarnath
Sehgal filed a petition under Section 57 of the Indian Copyright Act before the Delhi High Court
seeking for enforcement of his Moralsright. He sought for an apology from the defendants, a
permanent injunction on the defendants to restrain them from distorting, mutilating or damaging
the plaintiff's mural and damages to the tune of INR50 Lacs. He was also granted the same.The
main conclusion from this case is that despite the transfer or sale of a copyrighted works from
the creator to another person, and all the right of the creator do not get extinguished. The creator
still retains his/her Moralsright that can be enforced when the need be..

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4.)Conclusion and Suggestion

The concept of intellectual property developed in order to protect the ingenuity and creation of
mind. Its aim is to encourage innovation and enterprise. Among all the intellectual properties, the
most important one is Copyright, it literally translate to right of a person to make copies or
reproduce his work. The concept of copyright is meant to protect authors and artists who work
day in and day out in order to create something worth publishing, which not just gives them
economic gains, but also is helpful in development in the whole society since it enables greater
thinking ablility among the general populace and hence enhances the speed of development of
the whole nation. In order to ensure a full and effective participation in public life and to lead a
better life access to information and knowledge is a must. In a welfare State it is the duty of the
State to ensure that there is dissemination of knowledge and information to such an extent that it
benefits all. At the same time it is the duty of the State to protect those intellectual labours which
is the root cause of this information. This balance is being ensured with the help of copyright
law. But we can see that the current Copyright Act is not adequate to deal with the needs of the
changing society. The influence of Internet is rampant and so are the problems it creates, relating
with copyright. The current Act is incompetent to deal with this scenario. Just because to date no
such issue has come before any Indian Court it would be foolish to believe that it will never
come or wait till the date when such issues actually come. Internet should not be looked upon as
a problem creator, instead it must be seen as the most preferred means for the dissemination of
information and rules must be drafted in such a manner so as not to prejudicially affect free
access. From the cases discussed it can be inferred that the courts have always taken a pro-author
attitude. The courts have in most situations widened the ambit of the rights guaranteed by the Act
and in most cases have gone much beyond the philosophy of copyright protection and intention
of the legislature to grant protection to authors of the work. In certain cases it seems to be just
though in most cases it is not so. The courts while giving most judgments in favour of authors
seems to forget the social implications such judgments can have. The court which is supposed to
strike a balance between the rights of authors and public interest can be seen, in certain cases, as
the cause for upset of the existing balance.
Bibliography

1.) Law related to Intellectual Property by Dr. B.L.Wadehra, 5th edition, 2016,EBC
2.) Intellectual Property law by P.Narayan 3rd edition,Eastern Law House
3.) Intellectual Property Law by Suryakant Mahadev Gujjar, Lawman Academic
Publication
4.) Websites refferes are :

1.)http://www.WIPO.int

2.)SCConline/AmarnathSehgal

3.)Manupatra