Right to Property Reigns Supreme Over the Moral Rights of an Architect: Indian High Court Changes Course
by Adyasha Samal
‘What cannot be viewed, seen, heard or felt, cannot be imperfect and cannot affect the honour or reputation of the author.’[1]
Introduction
The Delhi High Court (‘The Court’) in Raj Rewal v Union of India dismissed a petition challenging the destruction of Delhi’s iconic Hall of Nations, a structure built in 1972 to commemorate 25 years of India’s independence.[2] The Court based its decision on the Constitutional protection of the right to property, thus changing course from its long-established principle on moral rights.[3]
This article is an analysis of the Raj Rewal judgment, which demonstrates the legal principles for the moral rights of architects in India. It first provides background to the position of moral rights in the Indian copyright regime and then explains the Court’s approach to these rights by discussing the landmark case of Amarnath Sehgal v Union of India.[4] The article examines the judgment of Raj Rewal to explicate the departure from the previous position of the law. It finally argues that Raj Rewal lacks the nuance required to deal with increasing complexities in modern copyright law.
- Understanding Moral Rights
Moral rights are a special kind of right conferred on creators of certain types of works protected by copyright and meant to be exercised by them alone.[5] These rights originated in 19th century French and German civil law and were soon embraced by other European legal systems.[6] Moral rights (or droits moraux)[7] derive their force inter alia from the Hegelian theory of the extension of one’s personality into the individual’s intellectual creation.[8] According to Hegel, the external actualisation of the human will requires property. When individuals expand their selves outward beyond their own minds and mix these selves with tangible and intangible items, they attain moral claims to their own talents, feelings, character traits, and experiences.[9]
Moral rights are a family of rights, including the right of paternity, integrity, divulgation, and retraction.[10] Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works protects the first two of these rights.[11] The right of paternity is the right to be identified as the author of one’s work, while the right of integrity prevents any modification, distortion, or mutilation of the work that is prejudicial to the author’s reputation.[12]
The moral rights of paternity and integrity have been statutorily protected in India since the enactment of the Copyright Act 1957 (‘the Act’).[13] These rights have been judicially reinforced in multiple cases.[14] Notably, the Court has stepped in to protect the rights of a writer whose story was distorted by filmmakers who had been assigned the copyright to adapt it into a movie.[15] Paternity right protection has also been extended by the court beyond the author alone to a performing artist who had been not been attributed for a song performed in a film.[16] When the filmmakers did not accredit her as the lead singer for her song, the court stepped in to uphold her right in equity to be so recognised.[17] In a similar decision, the court directed filmmakers to give due credits to the petitioner who had contributed significant material for the script, despite her not qualifying as ‘author’.[18]
The most significant case in moral rights’ jurisprudence is that of Amarnath Sehgal v Union of India.[19] In this case, the Delhi High Court upheld the right to integrity of the creator of a mural commissioned by the Government.[20] It was this decision that laid down the precedent for liberal interpretation of statutory rules to protect authors’ moral rights.
- The Amaranth Sehgal Case
In the early years of India’s independence, the globally renowned artist Amarnath Sehgal was specifically commissioned to create a bronze mural. This mural was to adorn the walls of the entrance to Vigyan Bhawan, a building erected to host national and international conferences in Delhi. Two decades later, the mural was cast away into a storeroom, damaging the piece. The sculptor sought damages for violation of his moral rights, claiming such derogatory treatment to be prejudicial to his reputation as an internationally acclaimed artist. The Union of India in its defence had submitted that it had duly paid to the plaintiff the price for the mural and had, therefore, acquired rights to consign it to a storeroom which was now the Government’s property.[21]
Ruling in favour of the plaintiff, the Court hailed the sculpture as part of the cultural heritage of the nation.[22] It held the destruction of the work to be ‘an extreme form of mutilation’,[23] which by reducing the volume of the author’s creative corpus, affected his reputation prejudicially.[24] In doing so, the Court paved the way for a wider interpretation of Section 57 of the Act.[25] The law only expressly prohibited the acts of ‘distortion, mutilation, modification and other acts’, and did not specifically use the term ‘destruction’.[26] The Court acknowledged the privileged relationship subsisting between the artist and his creation even when economic rights under copyright law have been parted with.[27] Considering this, the Court ordered the defendants to return the mural to the plaintiff and pay damages worth INR 500,000 (ca GBP 5,500).[28] The case has long served as a precedent for the judiciary’s commitment to moral rights and support for the dignified treatment of the cultural resources of the nation.
- Raj Rewal v Union of India
In the landmark judgment Raj Rewal v Union of India, the Court settled the law with regard to the extent of protection of moral rights on architectural works.[29] The case concerned a building which was a work of architecture protected by copyright.[30] Despite being classified by the Act as an artistic work,[31] this was treated differently from other works in the category as the court carved out an exception based on the nature of architectural works.
In 2016, the government-run Indian Trade Promotion Organisation (‘ITPO’), owner of the Hall of Nations, decided to demolish the Hall in order to construct an integrated exhibition-cum-convention centre.[32] Despite protestations from the architect Raj Rewal (‘the architect’) who had designed the Hall, ITPO went ahead and demolished the building within a year.[33] The architect petitioned in the Court, seeking reconstruction of the complex. He claimed that the demolition amounted to derogatory treatment prejudicial to his honour and reputation. ITPO submitted in response to this claim that demolition of the complex was akin to failure to display the architect’s work, which had been statutorily exempted from amounting to infringement of moral rights.[34]
In its judgment, the Court paid due respect to the architect’s feelings of attachment to his creation. The Court, however, went on to observe that when the structure was completely removed from public viewing, the question of causing prejudice or bringing dishonour to the plaintiff’s reputation did not arise. Moreover, since the defendant owned the land on which the complex was built, it had a right to deal with the property as desired.[35]
To arrive at this conclusion, the Court explored the inherent difference between an architectural work and other copyrighted works such as paintings, sculptures, drawings, etc. Unlike other works protected by copyright, those works of architecture which are built on land,[36] rest upon a medium of fixation carrying a distinctive value of its own. Once constructed, these works cannot be separated from the land they are built on.[37] The Court observed that land being a subject-matter of multiple independent legislations,[38] a straitjacket application of moral rights without due consideration of the laws affecting the land (on which the building stands) cannot confer proper justice. Having established this principle, it invoked Article 300A of the Constitution of India, which guarantees the right to property.[39] The Court weighed right to property – a constitutional as well as basic human right – against the decidedly inferior moral rights of an architect, which are mere creations of statute without any basis in common law.[40] It was held that the moral rights are pre-empted by property rights. Unless any specific provision in law is made, the Act cannot be interpreted to triumph over the right of the owner of certain property to deal with it as they like.
With this pronouncement, the Court relegated the rights of the architect to an inferior position in all cases where he/she is not the owner of the building designed by him/her. Such an approach is in conformity with the statutory regimes in certain foreign jurisdictions which refuse to empower architects with absolute rights against the destruction of their work.[41] However, it lacks the nuances of statutory provisions which define a harmonious middle ground between an author’s integrity rights and a land owner’s property rights. For instance, Australia’s Copyright Act 1968 provides for a consultation process[42] between the owner of the building and the author of the work where the work is sought to be destroyed.[43] Swiss law lays down specific grounds on which the architect may oppose the alteration to his/her work.[44] Finally, the United States’ Visual Artists Rights Act of 1990[45] accords authors of visual art a conditional right to prevent the destruction of their work where such work is of a ‘recognised stature’.[46] Accordingly, protecting the interests of architects through provision of such safeguards against destruction of architectural works is necessary to strike a balance between rights of property owners and of architects.
Another problematic principle laid down in Raj Rewal is that the destruction of a work in its entirety cannot prejudice the honour or reputation of the author. This is of particular importance since it relies on the premise that no imperfections can be found in what cannot be seen, heard, or felt.[47] This narrow interpretation of the law is in stark contrast to the ‘reduction of creative corpus’ argument accepted in Amarnath Sehgal.[48] Not only does this allow for the destruction of the work, erasing the historical evidence of the artistic work of the author, but it also fails to account for the presumptions likely to arise in the minds of people as to the reason behind the demolition. These presumptions may cause prejudice against the honour and reputation of the author. What is even more troubling is that this rationale is very much applicable in the case of destruction of other copyrighted works as well. This decision is therefore erroneous in the application of law to fact, and short-sighted in its ability to contemplate the broader implications of the principle so evolved.
In summary, the Court in Raj Rewal has resolved the battle between an architect’s moral rights and the copyright owner’s property rights in favour of the latter.[49] It has done so by distinguishing architecture from other areas of copyright and furthermore sanctioning a dilution of the moral rights over an architectural work. It has also partially overruled Amarnath Sehgal through stricter interpretation of the Act.[50] ‘Destruction’ is now excluded from the purview of the acts that can result in prejudice to the honour of the author under Section 57 of the Act.
Conclusion
It must be stated that the Delhi High Court’s decision in Raj Rewal is well-intended, in so far as it attempts to fine-tune the law with regard to the status of moral rights on a work of architecture.[51] What makes the decision unfortunate is that it is ill-premised. The idea that the complete removal of a work from public display causes no prejudice to the author’s reputation because one cannot judge what one cannot see is unrealistic and results in legal uncertainty. Since the Court provides no qualification for this principle, the decision can cause problems when applied in situations not concerned with architectural works.
Although the decision to reject a plea for reconstruction of the Hall of Nations complex is reasonable, the Court has chosen to follow an easy path. It has plainly invoked the Constitutional right to property to defeat all moral rights provided by the exhaustive copyright statute.[52] This situation highlights the gaps present in Indian copyright law. The Act is not equipped to deal with a complex situation where the moral rights of the architect are pitted against the property rights of those who own the building and the land on which the building stands.[53]
While the Court has relied on the inherent difference between works of architecture and other types of copyright to rationalise its verdict, the onus is now on the Indian Parliament to formulate a nuanced approach and make the necessary amendments to protect the moral rights of architects.
[1] Raj Rewal v Union of India &Ors CS (COMM) 3/2018, IA No.90/2018, <www.livelaw.in/pdf_upload/pdf_upload-361182.pdf> accessed 18 August 2019.
[2] ibid.
[3] Constitution of India 1950, a 300A.
[4] Amarnath Sehgal v Union of India 2005 (30) PTC 253 (Del), <www.indiankanoon.org/doc/1990275/> accessed 18 August 2019.
[5] Michael B Gunlicks, ‘A Balance of Interests: the Concordance of Copyright Law and Moral Rights in the Worldwide Economy’ (2001) 11(3) Fordham Intel’l Prop, Media & Ent’t. L. J. 601.
[6] Stig Strömholm, ‘Droit Moral – The International and Comparative Scene from a Scandinavian Viewpoint’ (2002) Scandinavian Studies in Law, 217.
[7] In French.
[8] Sonya G. Bonneau, ‘Honor and Destruction: The Conflicted Object in Moral Rights Law’ (2013) 87 St John’s L. Rev. 47, 52.
[9] G W F Hegel, Elements of the Philosophy of Right (first published 1821, Cambridge University Press 1991).
[10] Calvin D Peeler, ‘From the Providence of Kings to Copyrighted Things (and French Moral Rights)’ (1999) 9(2) Ind. Int’l & Comp. L. Rev. 423, 427.
[11] Berne Convention for the Protection of Literary and Artistic Works, 828 U.N.T.S. 221, signed 9 September 1886.
[12] Brian T McCartney, ‘“Creepings” and “Glimmers” of the Moral Rights of Artists in American Copyright Law’ (1998) 6(1) UCLA Ent‘t. L. Rev. 35, 38.
[13] Copyright Act 1957, s 57.
[14] Anand Patwardhan v Director General Doordarshan Suit No 2259 of 2004.
[15] Mannu Bhandari v Kala Vikas Motion Pictures Ltd AIR 1987 Del 13.
[16] Neha Bhasin v Anand Raj Anand 132 (2006) DLT 196; See also Suresh Jindal v Rizsoli Corriere Della Sera AIR 1991 SC 2092.
[17] ibid.
[18] Fox Star Studios v Aparna Bhat CM (M) 15/2020 decided on 11 January 2020.
[19]Amarnath Sehgal (n 4).
[20] ibid 59.
[21] Mira T S Rajan, ‘Moral Rights and the Protection of Cultural Heritage: Amar Nath Sehgal v Union of India’ (2001) 10(1) Int’l J Cultural Prop 79, 81.
[22] Amarnath Sehgal (n 4) [59].
[23] Amarnath Sehgal (n 4) [56].
[24] ibid.
[25] Rajan (n 21) 84.
[26] Copyright Act 1957, s 57(1)(b).
[27] ibid s 17(a).
[28] Amarnath Sehgal (n 4) [62].
[29] Raj Rewal (n 1).
[30] Copyright Act 1957, s 2(b).
[31] ibid s 2(c)(ii).
[32]PTI, ‘Delhi’s Iconic Hall of Nations Demolished’ <www.indianexpress.com/article/cities/delhi/delhis-iconic-hall-of-nations-demolished-4626629/> accessed 2 December 2019 (The Indian Express, 24 April 2017).
[33] Jaideep Deo Bhanj, ‘Pragati Maidan icon is gone’ (The Hindu, 24 April 2017) <www.thehindu.com/news/cities/Delhi/delhis-hall-of-nations-demolished/article18199298.ece> accessed 18 August 2019.
[34] Copyright Act 1957, s 57(b).
[35] Constitution of India 1950, Article 300A.
[36] The judgment does not take into consideration that some unconventional works of architecture have been constructed on water bodies.
[37] Raj Rewal (n 1) 17.
[38] Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013; Transfer of Property Act 1882.
[39] ibid.
[40] Copyright Act 1957, s 16.
[41] Roderick Chalmers Hoynck van Papendrecht, ‘Not all alterations of architectural works result in infringements of moral rights’ (International Law Office, 30 April 2019), <www.internationallawoffice.com/Newsletters/Litigation/Netherlands/AKD-The-Netherlands/Not-all-alterations-of-architectural-works-result-in-infringements-of-moral-rights> accessed 18 August 2019; discussing Case No
17/06094, ECLI:NL:HR:2019:451.
[42] Copyright Act 1968 (Cth), s 195AT(3) (Austl.).
[43] Andrew Murray, ‘Australia: Addressing the moral rights of design consultants’ (Mondaq, 30 July 2012), <www.mondaq.com/australia/x/189018/Copyright/Addressing+the+moral+rights+of+design+consultants> accessed 18 August 2019; See also, Matthew Rimmer, ‘Crystal Palaces: Copyright Law and Public Architecture’ (2002) 14(2) Bond L. Rev. 320, 328.
[44] Swiss Federal Copyright Act 1992, Article 11(2).
[45] 17 US Code, S 113(d).
[46] Jill R Applebaum, ‘The Visual Artists Rights Act of 1990: An Analysis Based on the French Droit Moral’ (1992) 8(1) Am U Int’l L Rev 183, 207.
[47] Raj Rewal (n 1) 24.
[48] Amarnath Sehgal (n 4) 56.
[49] Raj Rewal (n 1).
[50] Amarnath Sehgal (n 4).
[51] Raj Rewal (n 1).
[52] Copyright Act 1957, s 16.
[53] Divij Joshi, ‘Delhi High Court Rules that Moral Rights Offer No Remedy for Destruction of a Work’ (SpicyIP, 31 May 2019) <www.spicyip.com/2019/05/delhi-high-court-rules-that-moral-rights-offer-no-remedy-for-destruction-of-a-work.html> accessed 2 December 2019.