Personality Rights under the Indian Copyright Law By: Monika Rahar

The Author, Monika Rahar, is 4th year, BA.LLB  student of UILS, Chandigarh University, Punjab. Monika is a Campus Ambassador for LatestLaws.com.

No one is free to trade on another's name or appearance and claim immunity[i]

1. The Notion of Personality and its Evolution

The theories of Emmanuel Kant and Hegel are considered instrumental in developing our understanding of ‘personhood and property.’ Hegel’s theory recognizes the right of a person in his ‘intellectual property’ in the following words; “What is peculiarly mine is a product of my mind, owing to the method whereby it is expressed, turn at once into something external like a ‘thing’[ii] which may then be produced by other people.” [iii]

Creation of ‘intellectual property’ has enabled humans to leave its imprints on universe, glaciers, mountains, oceans, airspace and hence, protection of this ‘intangible property’ is necessary for progress of the mankind.

2. Right to Publicity and Privacy; the Two Aspects of Personality Rights

There are two aspects of personality rights namely; publicity rights and right to privacy[iv]. In India, personality rights are not given concrete or substantive protection under specific legislative framework, however, protection of the same is ensured by way of judicial precedents and also provisions of the Copyright Act, 1957 (the act) are attracted to claim remedy.

3. Protection of Personal Rights under The Copyright Act, 1957 (The Act)

Section 13 defines the scope of the act as applicable to; a) original literary, dramatic, musical and artistic works; (b) cinematographic films; and (c) sound recording. While section 14 provides that ‘copyright’ is an exclusive right to do or authorize the doing of; reproduction of the work, issuing copies of the work to the public, performing or communicating the work, making any cinematographic film or sound recording. The act safeguards the right of the creator[v] of the work and in case of an expressed and written contract; the proprietor[vi], the person on whose instance and in consideration of money paid by him such work is created[vii], the employer[viii], assignee[ix]  and the licensee[x] of the work.

3.1. Performer’s Rights- (Sections 38, 38A and 38B)

The personality rights of a performer[xi] are protected under Sections 38, 38A and 38B of the Act. A performer has; (i) special right in relation to his performance; (ii) exclusive rights (with respect to the performance) to make or authorize making sound or visual recording and broadcast or communicate to the public; and (iii) moral rights to be identified as a performer, to restrain or claim damage for harm or prejudice to reputation caused due to distortion or mutilation or modification made in the performance.

3.2. Author’s Special Rights- Section 57-

An author has special right to; (i) claim authorship in his work (irrespective of assignment of the copyright); and (ii) restrain or claim damages against any distortion or modification or mutilation which would have negative impact on his reputation or honor. Also, the author of a work is bestowed with the right of ownership over all infringing copies and plates used for such infringement. 

3.3. What Constitutes Infringement of copyright and what are the rights available with the holder of copyright (holder)?

The provisions governing infringement is provided under Chapter XI (Section 51, 52A, 53 and 53A). These sections are important because they decide the scope of rights available with the holder in a work. Infringement[xii] is caused when any person without having a license issued to him by the owner or the registrar or in case a license is so issued, without complying with conditions imposed; makes such use of the wok that the holder is exclusive authorized to do or lends place (for profit) for communication of work to public or aids in its distribution or selling.

Publication of sound recording and video film[xiii] mandates publication and display of name and address of the person, who; a) made it; and b) has copyright in it; and c) year of publication, on the sound recording or video film as the case may be or on their covers. In case such video is a cinematographic work, obtaining certificate of the CBFC u/s 5A is mandatory. Import in India of infringed copy can be stopped on request by the holder to the Commissioner of Customs.[xiv]  Holder has share in amount earned on resale of painting, sculpture or drawing, or of the original manuscript of a literary or dramatic work or musical work.[xv]

Right to Seek Remedy

a. Civil Remedy

The act provides for both Civil and Criminal remedy against infringement. The provision regarding civil remedy can be attributed to sections 55, 60, 61 and 62. Section 55 declares that, upon infringement, "the owner of the copyright shall be entitled to all such remedies by way of injunction, damages, and accounts and otherwise as are or may be conferred by law for the infringement of a right" and every such suit is instituted in a district court having jurisdiction.[xvi] The person whose name is carried in or on the infringing copies is deemed to be the defendant, unless and until the contrary is stated.[xvii]

b. Criminal Remedy

Chapter 13 of the Act provides for criminal liabilities that can be incurred on infringement of copyright. The provisions for the same are contained from section 63- 70 of the act. It provides for inflicting punishment which can extend to three years and of fine which may extend Rs. 2 Lacs. The proceeding governing the above mentioned matters are taken cognizance by Metropolitan Magistrate or Magistrate of 1^st class in the manner prescribed for cognizable offence under the Code of Criminal Procedure, 1973. A police personnel not below the rank of a sub-inspector, on his satisfaction, may, without warrant, seize the copies such infringed work and the apparatus used to produce such work.[xviii] This chapter contains detailed provisions to protect infringement by companies and individuals. Provisions for appeal are contained in Chapter IX.