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8/10/2019 Moral rights of actors
1/4
Conferring 'Moral Rights' on Actors: Copyright Act and Manisha Koirala CaseAuthor(s): Vinay Ganesh SitapatiSource: Economic and Political Weekly, Vol. 38, No. 14 (Apr. 5-11, 2003), pp. 1359-1361Published by: Economic and Political WeeklyStable URL: http://www.jstor.org/stable/4413397.
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2/4
evident
from a few
samples
of
commen-
taries
by
editors
and
columnists,
and
analytical
articles
by
defence
experts,
that
appeared
n the New Delhi-based
English
newspapers
during
the
war.
Even before the
US
troops
marched
into
Iraq,
the editor of
a
leading
Indian news-
paper
sought
to
jump
the
queue
of
Washington's sycophants,
by outlining
a
programme
s
to how the
Vajpayee
govern-
ment should behave
towards the US. He
echoed Bush
by approvingly pointing
out
the
"increasing
irrelevance
of the
UN".
Following
this,
he
advised
New Delhi
not
to
be
"pushedby entirely ignorant
and non-
serious
politicians,
and a
public opinion
determined
by touching
emotion rather
thancold reason"
(a
reference to the world-
wide anti-war
demonstrations?).
He
there-
fore warned our
government against
com-
mitting
itself "to
a
process
of
strengthen-
ing
the
UN" as that would introduce
"new
stresses on our relations with the US",
particularly
now
when
"our clever
new
positioning,
as
a
friend of
Washington,
has
come
very handy." ShekharGupta,
Indian
Express,
March
15,
2003).
A
week
later,
the
same
editor,
afterhemming
and
hawing
through
two-thirds of his column and scof-
fing
at calls
for
boycotting
American
goods,
finally
let
the
cat out of the
bag
-
"...the
larger point
is not
whether Bush
is
right
or
wrong,
but how well
we
serve ourselves...."
In
his
view,
we should not confuse "emo-
tional and
moral
outrage
with
global
re-
alities and national interest," and should
instead "mould our
responses
to these
realities."
(Indian
Express,
March
22).
This is
the
typical
ethos
of the new breed
of editors
and commentators
in
the na-
tional media.
They
are all
too keen to
'mould
their
responses'
to
the
US-led neo-
liberal
global
order
by
adhering
o
the 'me-
first-devil-take-the-hindmost'
principle,
and extend it to their
interpretation
of
national and
international
politics.
Con-
cepts
like
'right'
or
'wrong',
or
feelings
like 'moral
outrage'
are now
passe
Anti-
war
demonstrations are trivialised in
their
columns as
antiquated
oddities
indulged
in
by
a
bunch
of
eccentrics.
They
dismiss
ideological
beliefs
(in
human-
itarian
values)
or
ethical norms
(like
honesty
or
non-violence)
in favour
of
whatever
opportunities
(irrespective
of
their moral
implications)
that come their
way.
So,
Shekhar
Gupta
does
not care
two hoots for the
Iraqi
victims
of
US
bombing,
as
long
as
the
Indian
government
can
figure
out a
"strategy
to
profit
from
this"
(March 15).
Some
among
these Indian
commentators,
who are known to have a crush on the US
proponents
of
neo-liberalisation,
pretend
to
be neutral on the
Iraq
issue and take on
a
cynical posture.
A
typical example
is a
column
called
'Swaminomics',
authored
by
a
well
known
journalist,
carried
by
the
Times
of
India
on March
23.
According
to
him,
"victorychanges
everything".
In
other
words,
if
the
US
wins the war
-
which
it
hopes
to
-
all the
present uproar by
the
peace-nicks
will
evaporate,
and
people
will come to
accept
the
reality.
It
may
happen.
I
have
no
dispute
with him on
that.
But what
surprised
me
was that while
labouring
his
point,
he came
out
with an
astounding
piece
of information. Accord-
ing
to
him,
after the US
signed
a
peace
agreement
with
North
Vietnam,
the
latter
"violated the
peace agreement,
invaded
and took over South Vietnam".
Quite
a
striking
tribute
to the
strength
of
a false
mythology
-
and that
also
coming
from
someone who claims to be an
expert
in
international
politics
But
while we
at the moment can
afford
to
laugh
at
Bush's
speeches,
or at editors
who combine scant
knowledge
with ex-
cessive
gullibility,
the
American
people
are
being
reduced
by
their
president
to
a
besieged
nation,
to remain
perpetually
doomed
under the threat of terrorist
attacks. Even if
Saddam
is
'decapitated'
(the
term
used
by
Bush),
he
may
have
the
last
laugh, leaving
behind a
legacy
of
vengeance
against
the
US,
which
may
not remain confined
only
to his Arabcom-
patriots,
but
spread
far and
wide
-
from
the
poor people
of the third
world who are
victims of
Washington's global
economic
policies
on
the one
hand,
to the
govern-
ments
of the
developed
nations who feel
threatened
by
Washington's political
hegemony
over them
on the other.
[1
onferring Mora l Rights
o
Actors
Copyright
Act and
ManishaKoiralaCase
The
Manisha
Koirala
case has served to
highlight
the
absence of protectiontofilm actors in the IndianCopyrightAct.
Indian
ilm
stars have a
global fan-following
which translates
into
considerable commercialvalue. It
is
important
hat their
on-screen
image
be
protected.
Such
legal protection
can be
afforded
by conferring
'moral
rights'
-
the
right
to
be
acknowledged
as the creator
of
a work and the
right
to
prevent
distortion/mutilation
f
one's work.
VINAY
GANESH
SITAPATI
T
he
Manisha
Koirala ase
(Manisha
Koirala
vs Shashilal
Nair,
2003
(I)
AIIMR
426),
so full of
juristic pos-
sibilities,
ended
with
a
whimper
rather
than
the
expected
bang. Though
the
pub-
licity
for the case was
connected to
its
sensation
value
(which
contributed in no
small measure to the film's
subsequent
box
office
success),
the
case itself
was
emblematic of a
serious lacuna n the Indian
Copyright
law that
needs to be
addressed.
Manisha
Koirala,
a
well known
actress
from the
Bombay
film
industry,
approached
the
Bombay
High
Court
praying
for
an
injunction against
the release of the film
'Ek
Chhoti Si Love
Story'
in
which she
was
the heroine. Koirala's contention was
that
the unauthorised
use
by
the director
of a
body
double
resembling
her to
play
sexually explicit
scenes violated her
legal
rights.
Such
unauthorised use
presents
a
Gordian knot
requiring judicial,
and
leg-
islative
untangling.
The court
agreed
that
there
existed
a
prima
facie case of
defa-
mation and
granted
a
temporary
in-
junction
pending
the
hearing
of the suit. 1
The court was
to hear the substantive
arguments
on both sides.
But
by
resorting
to extra
judicial
adjudication,
Koirala
provoked
the court
into
declining
to
pronounce
on the
matter. The suit was
dismissed.
Economic and Political
Weekly April
5,
2003
1359
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3/4
It
was
a lost
opportunity
because an
examination of
the
protection
that Indian
law accords to
actors
in films
remained
unexplored.
Koirala
had
very
few
legal
remedies available under
existing
Indian
law tocombatthe
blatantly nequitable
and
unjust
use of a
body
double.
Indian
law
does not
protect
the
commercial
image
of
an actor or her
creative
input.
Koirala
was
not
prevent
all
forms
of
distortion
to an
on-screen character.
Keeping
in mind
this
background,
this
article
argues
that
the
Indian
Copyright
Act,
1957
[henceforth
Copyright
Act]
be
amended
to confer
'moral
rights'
on
actors
in
films.
An
actor's
onscreen
image
is
protected
both
in
the UK as
well
as the
US. The
UK
already
has
statutory provisions
akin
to
those
being
sought
in
this article. The
UK
therefore
accords 'moral
rights'
to
actors.
Whilst
the US does
not have similar
statu-
tory provisions,
the
judiciary
has
evolved
theequitableremedy of 'righttopublicity'
that
protects
the
image
of an actor.
India
has neither.
According
'moral
rights'
to
actors will fill this
lacuna.
Post-WTO,
a
number
of
intellectual
property right
[henceforth
IPR]
issues
including
patents
have
been
reviewed. Such review
seeks to
ensure
uniformity
amongst
IPR
laws in
global
markets to
better
protect
the
com-
mercial value of
the intellectual
property.
In
a bid to be
compliant
a
committee has
been
appointed by
India
to
recommend
changes
to
the
Copyright
Act. This
article
urges hat hisopportunitybeused to amend
the
Copyright
Act
by
conferring
'moral
rights'
on actors.
Such a
need
to
amend
copyright
law is
being
articulated not
only
in
India,
but
also
in
several
global
fora.2
Copyright
and
'Moral
Rights'
A
copyright
is a
largely
negative
right
that,
simply put, prevents
the
copying
of
the
material form
of
another's
intellectual
expression.
For
example,
whilst the
idea
portrayed
in
a
film
(boy
meets
girl;
they
get
marriedamidst
parental opposition)
is
an
idea
that
s not
protected,
its
expression
in
material
form,
namely,
the film
itself
is
protected
as
a
copyright.
The
Copyright
Act
is
the sole
residuary
of all
copyright
provisions
under
Indian law. The
Copy-
right
Act
grants
certain
rights
to all
'works'
under
the
relevant
section
(S2(y)).
These
rights
are
known
as
copyright
and
consist
largely
of
economic
rights
such
as the
right
to
reproduce
and to
prevent
unauthorised
reproductions
(mentioned
in
S14).
Such
rights
can be
transferred
for example
such
rights
in a film
can
be
sold
by
the
pro-
ducer).
The
Copyright
Act also
provides
forcertain
'performers'
ights'
(S38).
These
rights
are
also economic
rights,
but
they
pertain
to
performers
whereas
copyright
pertains
only
to 'works'.
A
unique
feature of
copyrights
world-
wide is
the
provision
for
'moral
rights',
which are
inalienable
and
always
remain
with the
creator
of
the
work,
legally
known
as
the
'author'. 'Moral
rights'
are
broadly
divided into
the
right
to
integrity
and the
right
to
paternity.3
The
right
to
integrity
is
the
right
to
prevent
mutilation/distortion
of an
author's
work and
the
right
to
pa-
ternity
is the
right
to be
acknowledged
as
the
author
of the work.These
rights
cannot
be
transferred.
For
example,
the artist
Amar
Nath
Sehgal
could
prevent
mutilation of
his
painting
even after
selling
the same to
the
government.
(Amar
Nath
Sehgal
vs
Union of
India,
MANU/DE/0327/2002).
'Moral rights' have been defined in the
Berne
Convention to which
India
is a
signatory
(Article
6bis
of
the
Berne Con-
vention for
Protection of
Literary
and
Artistic
Works
(Paris
Revision,
1971)).
It
has
accordingly
been
incorporated
into
Indian
law in the
form of
S57 of the
Copyright
Act,
which
confers these
rights
on authors.
As of
today,
the
Copyright
Act does not
confer
any
rights
on actors in
films. There
are
only
three
conceivable
ways
in
which
rights
can
be
granted
by
the
Copyright
Act.
(i) If acting in a film qualifies as a 'work'
(as
defined
in
S2(y))
of
the
Copyright
Act,
it would be
entitled
to
a
copyright (by
virtue of
S13(1)).
However,
a
division
bench of the
Bombay
High
Court has held
in
Fortune Films
v
Dev Anand
that
acting
in
a
cinematograph
ilm does
not fall under
any
of
the
enumerated
ypes
of
'works'
and
is therefore not entitled
to a
separate
copyright
(AIR
1979 Bom
17).
(ii)
An
acor as a
performer might
be
entitled to
certain
rights
S38
of
the
Copy-
right
Act
even
grants
certain
'performer's
rights'
to
'performers'.
However
actors
in
cinematograph
films cannot
avail of the
same
unlike
musicians,
dancers
and the-
atre
actors. This is because
S38(4)
ex-
pressly
bars
actors
who
have
'consented
to their
performance'
in
films from
being
accorded
any rights
as
performers.
(iii)
The
Copyright
Act confers
special
rights
or
'moral
rights'
on
'authors'
(S57).
If an actor
can
be
termed
an
'author',
he
would be
entitled to certain
'special
rights'
popularly
known
as 'moral
rights'.
How-
ever,
actors are not
listed
in
the definition
of
'authors'
(defined
in
S2(d)).
It is
thus
clear
that
the
framers
of the act did not
confer
'authorship'
on
actors.
Further,
ndia
intends to
be
a
signatory
to
the
WIPO
Performances
and
Phonograms
Treaty
(henceforth
WPPT)
as can be
evidenced
from
the committee set
up by
the
govern-
ment to
change
Indian laws
in
this
regard.
However,
the
WPPT
has
expressly
denied
'moral
rights'
to
audio-visual
performers
such
as
actors,4
partly
due to
India's in-
sistence
during negotiations,
leading
sev-
eral
commentators
to
opine
that this
was
due
to the
powerful
producer's
lobby
in
both
Hollywood
as well as
Bollywood
which seeks
to
deny
actors
any rights.5
It
is thus clear that
even
today,
the
legislature
is
against
conferring
'authorshiprights'
to
actors.
Thus actors can
neither avail of
copy-
right,
nor author's
special rights
(moral
rights),
nor indeed
performer's
rights.
It
is thusamply clearthatactors areconferred
no
rights by
virtue
of
the
Copyright
Act,
and
that the
position
of Indian law
in
this
regard
is
unambiguously explicit.
Conferring
an
entire
'copyright'
or
'performer's rights'
to
actors
is
impracti-
cal. The
copyright
in the film vests
in
the
producer.
'Copyright'
and
'performers
rights'
being
essentially
economic,
accord-
ing
these
rights
to
actors would create an
overlapping
of
rights
and a
conceptual
as
well
as
practical
aberration. However
conferring
'moral
rights'
to
actors
would
merely give them basic rights (the rightof
paternity
and
integrity)
and would not in
any
way
inhibit the
economic
rights
vested
in the
producer.
Need to
Accord
Actors
with
'Moral
Rights'
As stated
above,
actors are not
accorded
any rights
under
the
Copyright
Act.
But
such a
position
clearly
conflicts
with
the
Centre
for
Culture and
Development,
Vadodara,
invites
applications
from
researchers
with Ph.D
in
social
sciences
as research
associates,
on tenure
basis.
Applications
should reachthe
director, CCD,
XTI
campus,
SevasiPost,Vadodara391
101,
latest
by April
end.
1360
Economic and Political
Weekly April
5,
2003
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4/4
founding rationale,
or to
use
ajurispruden-
tial
expression,
the
grund
norm
behind
copyright
law -
namely,
protection
of
creativity.6
In
addition,
with enormous
commercial
value
being
attached to
actors,
and such
value
being
a
creation
of
the
actor's on-screen
image,
the
principle
of
equity
demands
especially
in the absence
of other
protective
laws,7
the
conferring
of
copyright
to
actors.
There are
two broad reasons
why
actors
must be
accorded
'moral
rights'.
The
first
is embedded
in
the
very
rationale behind
copyright
tself: to
protect
the
creativity
of
individuals and to
provide
economic
in-
centive
for further
such
creativity.8
It
is
obvious that
actors are
creators
-
never
mind what
passes
for
'acting'
in most
mainstream
Bollywood
films
- who cre-
atively
contribute
to
the
development
of
their characters.
It is
only
reasonable
to
expect
that as
creative
components
within
a film, they must be accorded separate
rights.
In
fact,
S
13(4)
of
the
Copyright
Act
recognises
such a
possibility
by
envisag-
ing
an
independent copyrightable
exist-
ence in
"any
work in
respect
of which...the
film...is
made". The
Supreme
Court has
reiterated
this
conceptual
possibility
in
Indian
Performing
Rights
Society
vs East-
ern India
Motion Pictures Association.
(AIR
1977
SC
1443).
But while
accepting
that a
copyright
can be vested
in
creative
components
of films.
The
Copyright
Act
curiously
denies actors such
rights.
En-
glish common law on the other hand
expressly
grants copyright
to
acting
in
cinematograph
ilms.
In
the celebrated
case
of
Norowzian
vs
Arks
(1998
FSR
394)
the
English
courts
recognised
that
acting
in an
advertisement
ilm
is a dramatic
work
that
is
capable
of
an
independent
copyrightable
existence.
The second reason
for
according
copy-
right
to actors
is one of need.
It
would be
stating
the
obvious to
point
out
that
the
legislature
and
in its
absence
the
judiciary
must
evolve
law
to deal with
contemporary
issues in
society.
For
example,
in
accom-
modating
the need to confer
authorship
on
computer
programmers
an
unknown
spe-
cies when
the
US
Copyright
Act was
framed)
he US courts n
Apple
Computers
vs Franklin
Computer
Corp
(714
F 2d
1240
(3d/Circ
1983)
reinterpreted
he definition
of
'literary
work' and
read
the literal
computer
code
into
the definition.
In
doing
so,
copyright
was
conferred on
computer
programmers.
Today,
actorsearncolossal amounts
rom
appearances
in
films. Such commercial
value
to their
image
is as coloured
by
their
on-screen
depictions
(the
perpetually
he-
roic
MGR
being
a
case
in
point)
as
it
is
by
their off-screen
exploits.
The
principle
of
equity
demand,
that such a commer-
cially
viable
on-screen
image
be
protected.
Conferring
'moral
rights'
on actors will
ensure
that there is no 'distortion mutila-
tion,
modification' to their
on-screen
image
which
is
prejudicial
to
the
actors'
'honour
or
reputation'
(S57(b)).
Further,
no
other law
in
India accords
protection
to the
image
of
an
actor. The
'right
to
publicity'
is
not
a
copyright,
but
a US
case law evolved
equitable remedy.
Evolved as an extension
of the
right
to
privacy
in Haelan
Lab,
Inc
vs
Topps
Chewing
Gum,
Inc,
202F.2d
866
at
868,
(2d Cir),
cert
denied,
346
US816
(1953)
the
right
also
protects
the 'unauthorised
commercial
use of a
public figure's
im-
age.9
Had the Manisha Koirala case arisen
in America, undoubtedly she would have
made use of
the
right
to
publicity
doctrine
and
the
case
would have
been
decided
in
her favour.
Unfortunately,
the
right
to
publicity
has not been
recognised
in
com-
mon
law,
nor indeed
in Indian law. The
R R
Gopal
case
(MANU/SC/0056/1995)
and
the
Phoolan Devi
case
(MANU/DE/
0486/1994)
both of
which
extensively
deal
with
the
right
to
privacy
do not
even
in
passing
extend it to
a
public figure's
image.
It is
of course
possible
for
Indian
courts
to
recognise
the
right
to
publicity
and thus accord actors with rights. But
such
a
case
law evolved
remedy
is
a
substantial
change
in
law and
should
not
be introduced
by
the
judiciary,
without
enactment.
Further,
apart
rom
possessing
a
commercially
viable
image,
an
actor
is
a creator.
As
a
creator,
s/he is
entitled
to
copyright.
Had such
a
provision
existed in Indian
law,
it would have
given
Manisha Koirala
clear
protection.
Due
to the
lack of other
remedies,
Manisha
Koirala
was
forced
to
argue
that she had been defamed
by
the
use
of a
body
double
in
certain
objection-
able scenes.
Defamation
requires
injury
to
one's
'personal reputation'.
But
Manisha
Koirala was
far
more
worried at the
pos-
sible
injury
to
her
'public
image',
an
image
that
is hitherto
unprotected
in Indian
law.
It
is
unfortunate that
irked
by
her resort
to
extrajudicial authority
n
the form
of
Bal
Thackeray
and the
I and B
ministry,
the
court refused to
grant
an
injunction
and
misses
an
opportunity
to
point
out the
inadequate
protection
Indian law
accords
to an actor's
image.
Trends
in international
opinion
favour
the
conferring
of 'moral
rights'
on
actors.
Apart
from the
explicit
common
law rec-
ognition
of the
same,
the
WPPT
treaty
and
associated conventions
are orawheresuch
a need has been articulated on
several
occasions.
It is unfortunate thatthe WPPT
has not conferred 'moral
rights'
on actors.
It is indeed even more unfortunate that
opposition
from
India in tandem with the
US are
the
principal
reasons for
this situ-
ation. In
an
age
where an
'image'
is worth
crores
and
creativity
is
protected
through
a
plethora
of
laws;
deserving
creators
like
actors
must
be
protected.
It
is
thus
urged
that S57 of the
Copyright
Act be
amended
and
actors be conferred 'moral
rights'.
It
is believed that the
government
is indeed
contemplating
such
a
proposal.
If
this
actually happens,
film stars and their fans
have reason to cheer.
[C
Notes
[This
article s
adapted
rom the
topic
for the
2003
D M Harish
All
India Moot Court
Competition
held under
the
auspices
of Government Law
College,
Mumbai
Part of the research
has been
done
by
the
NLSIU
team for the
same,
and
s
duly
acknowledged.
The writer was a
member
of the
award
winning
NLSIU
team.]
1 A
temporary
njunction
is
granted
whilst
the
suit
is
being
heard.It is
however,
subject
to the
final
decision
of the court.
2
During
the
negotiations
for
the
WIPO
Performancesand
Phonograms
Treaty,
such
a
need was articulated but was withdrawn
following
much
protest.
See also Adler
Bernard,
"the
Proposed
New
WIPO
Treaty
or Increased
Protection
for
Audiovisual Performers: Its
Provisions andIts Domestic and International
Implications",
12
Fordhaml
ltell
Prop
Media
and
Ent
L
J,
1089
(2002).
3
The
English Copyright
Act
has
expanded
the
scope
of moral
rights
to include
for
example
the
right against
false
attribution
of creation.
But
IndianLaw
does
not
recognise
such
rights.
4
www.wipo.org/pressroom/en/releases/2002/p
302.htm.
5
Fiona Macmillan 'The
Cruel C:
Copyright
and
Film',
2002
Eur 1 P
R.
p
21.
6 Laddie,PrescottandVictoria,TheModernLaw
of
Copyright
and
Designs
671
(2000).
7 The
right
to
publicity,
so well
evolved in
US
law,
is
unrecognised
n Indian aw. The law of
defamation
protectsonly
'personal
reputation'.
As
such,
no law in India
protects
the
public
image
of actors.
8
Laddie,
Prescott and
Victoria,
op
cit.
9 Vanna
White
v
Samsung,
971 F
2d
1395,
at
1398-99
(1992);
Zachini vs
Scripps-Howard
Broadcasting
Co,
433 US
562,
at 569
(1977).
See also Kirsten
Anker,
'Possessing
Star
Qualities:
Celebrity Identity
as
Property',
11
Griffith LR 147
(2002).
Economic
and Political
Weekly April
5,
2003
1361
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