Lights, Camera, Action: The Rising Friction Between Moral Rights And Digital Modifications
Updated: Jul 8, 2021
Copyright is not a single right but a bundle of rights that can be exploited independently. When it comes to the entertainment industry, for any producer of a film the budget is what is important and the amount of money invested behind the creation of the film should be recollected back from the audience. In order to focus on the economic usage of the copyright available to them, the threat possessed by digitalization to the moral rights of the creators is significantly ignored. The ability to reproduce, modify and redistribute artworks through information technology has made it extremely difficult for authors to monitor the use of their works and, where problems arise, to assert their moral rights. It is precisely when the capacity to manipulate works is greatest that concerns about artistic integrity and the preservation of cultural heritage become most pressing. The infringement caused to moral rights of creators in specific was present since long before digitalization has merely fastened the process.
Moral rights and the age of digitalization: Friends or foe?
The “Moral Rights” theory grants authors of copyrightable works certain inalienable rights in their works that complement the set of economic rights traditionally granted to copyright holders in all jurisdictions. The reasoning behind protecting such interests is the presumed intimate bond between authors and their works, which are almost universally understood to be an extension of the author’s personhood. The term “moral right” derives from the French expression “droit moral” has four basic rights that are understood to form the core of the droit moral suite according to French and German law:
Right to publish – the right to decide whether, when, how, and by whom the work will be made public
Right to retract – the right to prevent public dissemination of the work prior to or after publication, provided the author meets certain conditions
Right of attribution – the right to receive credit for a published work in the fashion that the author wishes
Right of integrity – the right to prevent or be compensated for any actions that mutilate, damage, or materially alter the substance of the author’s original work and that does harm to the author's honor or reputation.
We are aware of the existence of the Android torrent app, uTorrent which is used by many of us to download movies, web series, and cinemas across the globe even prior to the publishing of that piece of art. Here comes the first infringement of the right to publish. The marketing of movies has been provided with a new dimension altogether after the intervention of digitalization.
The dilemma about moral rights in the entertainment industry
Authors of creative works such as visual art, films, books, and songs naturally want the right to claim (or disclaim) credit for their efforts when their work appears before the public. Even more important to many artists is the right to protect the integrity of their work by preventing any significant alterations to its original form.
Under Section 195 of the Copyright Act, artists have a moral right to the integrity of their work and the right of attribution of authorship. This includes the right to “prevent a distortion, mutilation or other modification of or other derogative action in relation to the work which would be prejudicial to the author’s honor or reputation.” Under this moral right, artists have the right to have their work attributed to them in the form in which the artist created it.
At present, the most hotly debated and controversial infringement of moral rights is in film colorization and movie alternation techniques. Black and white movie favorites, such as Casablanca, are being altered and changed into color. Recently, actress Angelica Huston, on behalf of her father Jon Huston, sued the Ted Turner Entertainment Company for the non-consensual film colorization of his film The Asphalt Jungle. The French Court returned a favorable verdict concluding that the colorization of Huston’s film violated his moral rights. The court ruled that the colorization of the film could not be shown without the consent of the creator and damages were ordered.
Digitalization: A threat to creativity?
Moral rights stand in a position to protect the non-commercial interests of creative authors. Long enshrined in copyright statutes around the world, the scope of moral rights provisions transcends the general legal objective of protecting the professional livelihood of authors. With the online platform growing at a steady pace, the Music Consumer Insight Report, 2018 brought to notice the ease of consumers in utilizing OTT platforms as a means to access films and television series. Encouraging creators to produce more content and maximizing easy public access to it, is what copyright strives to achieve. The editor of the trade magazine Complete Cinema, Mr. Atul Mohan elaborated on the new-age Bollywood actors being smart and knowledgeable about sharing rights of their films with producers. To name a few actors who have turned into co-producers of their movies are Shah Rukh Khan, Akshay Kumar, and Anushka Sharma. They are now holding equal authority to exploit rights of their films through several approaches such as satellite, overseas or digital or for specific periods of time, after which they may pass them on to others, besides demanding a share of almost 30-40% in final profits.
Disney’s film, Coco recounts the story of Miguel Rivera, a young boy who is drawn to music but is forbidden by his family to follow his dreams because of the hardship brought on them when Miguel’s great-grandfather seemingly abandoned them for a life on the stage. This film requires a special mention under this heading because:
It is a heart-warming story that promotes family values, and second, because the film is about music, lyrics, songs, mariachis, and
the role that copyright plays in protecting them and the interests of creators.
But all stories do not end there because, in the current legal environment, two kinds of basic difficulties confront the author's moral rights;
There exists the practical problem of enforcing and implementing these rights when the author’s capacity to control the use of his work is severely limited.
The conceptual integrity of moral rights doctrine is threatened by the transformation of culture in the ‘Information Age.
The combination of these factors has led to a general malaise among copyright scholars often unexpressed but implicit in the research and a sense that moral rights have somehow become irrelevant.
The existing legislation across the globe celebrating moral rights
Moral Rights under the Berne Convention have been given a place under Article 6. Article 9.1 of the TRIPs Agreement requires members of the WTO to adhere to the rights protected in Articles 1 to 21 of the Berne Convention. Under TRIPs, these copyright standards become subject to WTO measures for their implementation and enforcement, in part, as these are shaped over time by WTO dispute settlement.
The scenario in India with respect to the Indian Copyright Act,1957
Presently, in our country, the protection and management of copyright in digital works are looked after by copyright societies formed by the owners of the copyright. These societies registered under Section 33 of the Copyright Act, 1957 work on the concept of collective administration of copyright. These societies are fully entitled to issue licenses, collect fees and distribute such fees among the owners of the copyright. But it is not an effective means to protect and control piracy of copyrighted work in a modern digital environment. Therefore, comparable provisions to WIPO Treaties are proposed in Copyright Amendment Act, 2012 to The Copyright Act, 1957. It includes the definition of The RMI under Section 2(xa) and the protection of The RMI under Sections 65A and 65 B. Section 65A of the Copyright Act deals with the protection of technological measures.
Instances revolving around the entertainment industry in relation to moral rights
It is necessary for us to include practical instances of risk possessed by moral rights in the entertainment industry in this article in order to let the readers get a taste of what has happened, what is happening, and what the future waits for. An overview of instances associated with the entertainment industry across the globe in relation to moral rights has been provided under this heading.
In the case of Zee Telefilms Ltd. v Sundial Communications Pvt. Ltd, Sundial developed the idea of a TV series called Krish Kanhaiy’ and approached the Managing Director of Zee sharing a concept note bearing the basic details. Later, it was found that a TV series called Kanhaiya broadcasted on Zee TV was substantially similar in nature to the idea that Sundial had communicated to Zee. Sundial filed a suit against Zee and, inter-alia sought an injunction. At the interim stage, a single Judge bench of Bombay High Court granted an injunction. In an appeal against this injunction by Zee, the Bombay High Court opined that an average person would definitely conclude that Zee’s film was based on Sundial’s script and hence upheld the injunction against Zee as Sundial’s business prospect and goodwill would seriously suffer if the confidential information of this kind was allowed to be used.
The problem in the Hindi film industry is there has never been any paperwork on these things. The director is always for hire though he can claim to have come up with nuances on the look and feel he can’t fight it out with the producer," film distributor Yusuf Shaikh said, calling the director and actors’ moral stake a totally grey area. The entertainment industries existing outside the territories of India have a better scenario in comparison to that of India. This is because proper utilization of existing legislations at required places takes place and hence the concept of moral rights is taken seriously.
In the well-known case of Clean Flicks of Colorado v. Soderbergh, the filmmakers claimed that under the Copyright Act, the creation of the edited copies violated the filmmakers’ exclusive rights to reproduce their own copyrighted films, distribute copies of their films to consumers by sale or rental, and create derivative works. The court ultimately ruled that the accused infringers violated Section 106(1) of the Copyright Act of 1976 when they created fixed copies of the studios’ copyrighted works.
Recommendations for future endeavors
A lack of awareness of their legal rights and the nuances of the contracts they’re signing can find creators losing or waiving incredibly important rights, along with negotiating away any semblance of control over the creative integrity of the projects they’re involved in. Now a lot of confusion around the assertion of one’s rights in their work revolves around the way in which copyright law and contracts determine authorship, ownership, and attribution. Grey areas have always been ripe for exploitation, we see this in the context of traditional community-based arts and music, almost all the time. The industry and the accompanying legal framework only consider crediting one (or two) creators as the legal authors of the creative work and rarely (almost never) reference the community from which the works actually originate.
While we have a platter beautifully arranged with legislation, rules, and regulations shielding moral rights, all we need to do is bring in a tablespoon of awareness to add taste to the platter. Before sitting and grieving, let us understand the need to realize the importance of the moral rights of creators in today’s fast-moving world. This realization will be the first step towards curbing threats possessed by excessive utilization of digital extensions rather than setting limits to the usage in order to not let cons overpower pros.
Co-authored by Oishika Banerji. Endnote Moral Rights: What’s the Story? https://www.mccormicks.com.au/blogs/moral-rights-whats-the-story. Last seen on 23/03/21.  Zee Telefilms Ltd. v Sundial Communications Pvt. Ltd 2003 (5) Bom CR 404, last seen on 21/03/2021  Clean Flicks of Colorado v. Soderbergh, 433 F. Supp. 2d 1236, last seen on 21/03/2021