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Wednesday, Dec 22, 2004

Opinion

Opinion - Leader Page Articles

Bharati and his copyright

By Mira T. Sundara Rajan

Many problems affecting Subramania Bharati's works amount to clear violations of the author's moral rights under the Indian copyright law.

C. SUBRAMANIA BHARATI died in 1921 at the early age of 39. The copyright in Bharati's works was taken over by the Government of Madras State in 1949, and, after the appearance of some initial publications, given as a gift to the people of India. From this time onwards, anyone in India would be free to undertake publication of Bharati's works. Publishers of Bharati's works would not be required to pay a copyright fee, or to submit their editions to any external process of review, whether administered by the Government, the universities, or other bodies of scholars.

The public gift of Bharati's copyright led to an explosion of activity. Publishers saw an extraordinary opportunity, in both commercial and cultural terms. Eighty-three years after his death, Bharati's writings are indeed as readily available "as a matchbox," as the poet once dreamed. However, the publication rush has also led to numerous problems — problems that the Government failed to foresee, and that will now be difficult to remedy.

In dealing with Bharati's writings, the Government faced a classic copyright dilemma. On the one hand, it wanted to promote the widest possible access to, and dissemination of, these important works. On the other hand, it could not sidestep the challenge of protecting the integrity of these works, and the stature of the personality behind them. In Bharati's case, the most effective approach to copyright in relation to culturally-important works may actually involve the joint pursuit of objectives that are often thought of as contradictory in copyright parlance: attempting to fulfil simultaneously the goals of dissemination and integrity. These two fundamental objectives of copyright policy should be recognised as interdependent and complementary means of furthering the cause of Indian culture.

Over the past 75 years, numerous editions of Bharati's poetry have appeared. His works have been translated extensively, and both he, as a "character," and his works have been featured in a number of films. However, the expansion of public access to Bharati's works has been matched by a decline in the quality of publication, from both technical and critical points of view.

The problems that have accumulated over the years in the publication of Bharati's works include careless printing that incorporates both typographical and interpretative errors into the final texts; false attribution of the works of other poets to Bharati; inaccurate and inappropriate translations; misleading representations of the poet's personality; and erroneous statements about his life and works. How can such problems be resolved? It seems natural to turn towards the law, and towards copyright law in particular, for guidance.

Copyright in India is governed by the Indian Copyright Act of 1957. If Bharati's copyright had been allowed to run its course unimpeded under Indian legislation of the time — the landmark British colonial statute of 1911 — it would have expired in 1971, 50 years after the end of the year in which the author died. It is noteworthy that this period of copyright protection is well short of the accepted international norm today, lifetime of the author and 70 years after his death, as well as being shorter than today's Indian norm of life plus 60 years. By making the copyright public, the Government of India further curtailed the enjoyment of the usual period of copyright protection. It is important to be aware that the policy behind protecting copyright after the author's death is to ensure that his family is able to survive and, indeed, to enjoy the economic benefit of its ancestor's success. The Bharati family was never in a position to do so.

However, the expiry of copyright — not natural in this case but brought about by the conscious actions of the Indian Government — does not dispose of copyright matters in the poet's work. This is because copyright is not limited to the economic rights of the author. Rather, it includes something called a "moral right": the author may have sold his copyright, but he continues to retain other kinds of right in his work, including the right to be acknowledged as the author of his own work, and the right to restrain the mistreatment of his work. These rights seek to protect the author's personal relationship with his own work, and in doing so, they play a valuable role in protecting the integrity of important works of culture that make up a country's cultural heritage. Just as moral rights continue to stay with the author even after he has parted with the economic rights in his work, they continue to subsist in his work even after the author's death. The author can appoint someone to be the executor of his moral rights after his death; if he does not do so, his heirs will be entrusted with the protection of his moral rights. In theory, moral rights can last forever. In India, moral rights are protected in Section 57 of the Indian Copyright Act, and, in keeping with the theory behind these rights, they continue to remain in the author's works in perpetuity. The protection of moral rights in the Copyright Act is strongly supported by Indian judges, who view these rights as an important tool in the protection of Indian authors against unscrupulous commercial exploitation of their works, and in the preservation of India's cultural heritage.

Many of the problems affecting Bharati's works amount to clear violations of the author's moral rights under the Indian copyright law. What are the implications of moral rights for protecting his works today?

The expression, "moral rights," is itself a somewhat awkward translation into English of the original term in French law, droit moral. The connotations of this French expression are quite different from its English equivalent, evoking, rights of a "personal or spiritual" nature, above all.

The two main types of moral rights are the rights of attribution and integrity. The right of attribution allows an author to assert authorship of his work, and to prevent another person from claiming authorship of his work. In addition, an author may prevent the attribution of works to him which he did not create.

The right of integrity allows the author to protest any distortion, mutilation, modification, or other treatment of his work which is, in the language of the Berne Convention, "prejudicial to his honour or reputation." In contrast to the highly specific right of attribution, the right of integrity is a broad right which allows authors to object to a wide range of practices — including editing, publishing, performance, and possibly exhibition — which may not be compatible with the intentions of the author.

The Indian Copyright Act currently provides protection for authors' moral rights in conformity with the international standard established in the Berne Convention.

Many of the problems involving Bharati's works may effectively amount to violations of the author's moral rights. The false attribution of the works of other authors to Bharati contravenes his right of attribution. Faulty printing is a modification of his work that could prejudice his reputation, depending on the nature and extent of the errors, and violates his right to the integrity of his work.

In addition, the issue of appropriation of Bharati's personality is one that arises frequently in practice and must be considered. Arguably, it is logical for moral rights standards to include some kind of protection for an author's personality, since the moral rights doctrine is itself based on the idea that the author's personality is reflected in his works. The protections offered by moral rights clearly implicate a number of legal concepts outside copyright's traditional reach — for example, the laws of privacy and misappropriation of personality come to mind. Misrepresentation of an author's personality may have an impact not only on how his work is received, but also on how it is interpreted and understood.

Notwithstanding these pragmatic concerns, a strong case can be made for extending perpetual protection to Bharati's moral rights, as would have been possible prior to the 1994 amendments to the Copyright Act. Because Bharati's works entered the public domain only three decades after his death, protection of his copyright was actually curtailed long before the time when it would have expired "naturally" — that is, in accordance with statutory provisions. In effect, these immortal and incomparable works were denied even the level of copyright protection granted to ordinary works. Moreover, given that interest in the works of important authors often develops long after their death, it seems unnecessarily restrictive to limit the protection of their moral rights to the duration of their economic rights. In the case of cultural works of outstanding importance, the perpetual protection of moral rights would provide a valuable means of supervising the treatment of these works to ensure that their integrity is maintained on an ongoing basis. In Bharati's case, his works are not only outstanding examples of literature, but they are also historical and social documents of great value.

(The author holds a D. Phil from Oxford, and is a leading international expert on copyright law. She is a great-granddaughter of poet C. Subramania Bharati.

An uncondensed version of this essay can be obtained by writing to v_bharati@hotmail.com)

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