The German Federal Court recently clarified that the waiver of the right to attribution is permitted as long as the author is not unduly disadvantaged. This blog examines the status of the waiver of moral rights like the right to attribution under Indian copyright law. It discusses the purpose and nature of moral rights and why waiver might be required for commercially exploiting copyrighted works. The blog argues that there is a necessity for a statutory provision that explicitly permits the waiver of moral rights while also restricting blanket or unwritten waivers in order to balance the rights of authors as well as copyright owners or licensees.
In a recent case in Germany, a photographer approached the district court at Kassel for damages. He claimed that his photos, which were available on a microstock portal, were used by the defendant without naming the former as the creator. Microstock portals allow people to obtain images or videos for use in exchange for a low one time license fee, a percentage of which is given to the creator. The photographer exclusively marketed his photos through such a portal and had agreed to a contract to use the portal’s services. The contract included a clause where the photographer waived his right to attribution, that is, the right to be named as the creator of the work. Consequently, the defendant used the photo she obtained from the portal as a website background and did not credit it to the photographer. However, the photographer sought damages for the violation of his right to attribution, claiming that the right could not be waived under a contract. The German Federal Court of Justice affirmed the lower court’s decision and dismissed the photographer’s claim. The Federal Court stated that a contract waiving a creator’s exercise of their right to attribution was valid if it did not unreasonably disadvantage the creator.
The right to attribution belongs to a special category of copyright known as moral rights that are recognised under Article 6bis of the Berne Convention. Thus, the waiver of the right to attribution is bound by the rules applicable to moral rights. These rights are meant to keep the author connected to their work regardless of changes in ownership. Moral rights are considered inalienable as they are a manifestation of the personality or creative soul of an author.[1] The moral right to attribution is considered significant to an author because each work they create derives value from its connection with all the previous work of the author.[2] Failure to acknowledge an author for their creation results in its exclusion from the author's body of work, detrimentally affecting the value of their future creations. If a novel receives an award for the best cover, but does not credit the cover artist for his work, then he won't be able to use this instance of success to charge a higher price for future work. However, copyright owners and licensees often get authors and creators to waive their moral rights. The waiver mitigates the uncertainty that authors may assert their moral rights in response to the commercial use or modification of copyrighted works.[3] An owner may make modifications to a copyrighted work and multiple individuals may contribute to the new version of the work. In this situation crediting each author might not be feasible, as there would be ambiguity regarding the extent of each author’s personality reflected in the work. Thus, copyright owners may want to avoid such possibilities through the contractual waiver of the moral right to attribution.
The German microstock portal case is important as it captures how some business models simplify the usage of copyrighted works in the digital economy by requiring the waiver of the right to attribution. Customers are attracted to such portals not only due to the affordable license fees but also because they can avoid the hassle of attributing the author every time they use a work.[4] Such business models also benefit creators as they do not need to make the effort to market their work or solicit business. Usually, creators use the works credited to them to build a portfolio, which is used to market their work and generate more opportunities. In the case of a microstock portal, the portal and not the creator markets the works to potential licensees. Since the creator is not required to generate opportunities for themself, it reduces the necessity of the licensee to credit the work to them.[5]
Notably, common law countries like the UK and Canada explicitly permit the waiver of moral rights like the right to attribution under their copyright legislations. However, the situation is far from clear in India. Section 57 of the Indian Copyright Act 1957 covering moral rights, states that these rights belong to the author even if the copyright to the work is owned by someone else. An author continues to have the right to be credited for their work even when the right to use the work is sold to another person.
Although the Copyright Act is silent on an author’s ability to waive the enforcement of the right to attribution, judicial pronouncements provide some guidance. In Mannu Bhandari v. Kala Vikas Motion Pictures Ltd (1987) the Delhi High Court held that the provisions of a contract cannot cancel out the moral rights provided under Section 57. This judgment’s stance would not allow a waiver clause that restricts the author from exercising their moral rights under Section 57. However, in Sartaj Singh Pannu v. Gurbani Media (2015), the Delhi High Court stated that an author can contractually waive their moral right to attribution as long as the waiver is voluntary. As Section 57 doesn't explicitly allow waiver and judicial precedents seem to conflict in their approaches, the permissibility of waiver is left uncertain. Authors are at risk of agreeing to unregulated blanket waiver clauses due to the absence of a defined legal provision specifying the extent and manner of waivers.
While it is necessary to provide clarity and statutorily permit the waiver of moral rights, certain measures need to be implemented to balance the interests of authors against copyright owners. Firstly, waiver of moral rights should be permitted only through written contracts. The explicit reference to waiver in a written contract notifies the author of the option to retain their moral rights if desired or to negotiate for higher compensation.[6] To that end, sections 19 and 30 of the Copyright Act 1957, already require the assignment and licensing of a work to be in written form. Secondly, the waiver of moral rights may be permitted only for pre-existing works, except for works created under a commission or by employees of the copyright owner.
It is probable that even without legal clarity, waiver clauses are already a part of copyright sale and licensing contracts. Expressly permitting the waiver of moral rights, while implementing specific safeguards to protect authors, can offer authors increased chances to profit from their works and aid users in minimizing risks linked to using copyrighted materials.
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[1] Neil Netanel, Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative Evolution (1993)
[2] H Hansmann, M Santilli, Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analysis (1997)
[3] MTS Rajan, Moral Rights in Information Technology: A New Kind of Personal Right (2004)
[4] I ZR 179/22 The Federal Court of Justice, Germany, 15th June 2023, Para 7
[5] I ZR 179/22 The Federal Court of Justice, Germany, 15th June 2023, Para 37
[6] H Hansmann, M Santilli, Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analysis (1997)