In May this year, in a case concerning the demolition of Hall of Nations, Hall of Industries, and Nehru Pavilion in Delhi, all three of them being highly acclaimed architectural relics, the Hon’ble Delhi High Court has ruled that an architect does not have the right to ask for reconstruction of his demolished buildings as per original plans. The primary question that this case raised was vis-a-vis the ambit of the Right to Integrity in works of one’s authorship as guaranteed by the Berne Convention to which India is a signatory and the mandate of which has been adopted into India by virtue of the Copyright Act, 1957.
[Ayushi Goel is a fourth-year student of B.A. LL.B (Hons.) at the Rajiv Gandhi National University of Law, Punjab]
Facts of the Case
An internationally acclaimed architect, Mr Raj Rewal filed a Writ Petition against the demolition of the above buildings by the Indian Trade Promotion Organization and the Government of India, as part of the proposed re-development of Pragati Maidan. After that Writ Petition was dismissed by the Hon’ble High court of Delhi and the buildings had been demolished, the Mr Rewal had preferred a suit demanding that these buildings be reconstructed as per his original architectural specifications at same or another site of similar prominence, under his direct supervision.
What are Moral Rights?
Article 6bis of the Berne Convention, which India has ratified, provides for the protection of author’s moral rights. Moral rights in one’s creative work are distinct from his or her economic rights. Moral rights in creative work belong to the author as they are an extension of the author’s personality, reputation, and honour. Therefore, it is imperative to protect the integrity of the work. Any negative dealing in one’s work results in the disparagement of the author’s reputation.
Under Section 57 of the Copyright Act, the author of a copyright holds a special right with regard to his/her creation. This right subsists independently of the author’s copyright even after the assignment of the copyright and extends to the right to claim authorship of the work, and to restrain or claim damages in respect of any distortion, mutilation, distortion, etc., if the same would be prejudicial to his honour or reputation. This is the moral right of the author.
What Does the Judgment Say?
One of the grounds put forth in the judgment is that intellectual property rights are somehow inferior to property rights in land and that this inferiority is in fact ordained by the Constitution, which at one time classified the right to property (land) as a fundamental right, and even today guarantees this right to the citizens, the only exception being a due process established by a just law, in which case also compensation is payable.
Another leg of this argument is that since the Copyright Act itself does not explicitly state that architects shall have a right against complete destruction of the buildings (they do have a right against mutilation or anything short of demolition), the courts cannot interpret ‘right to integrity’ to include demolition.
The Court concluded that the author’s moral right extends to preventing mutilation, distortion or modification and he/she cannot prevent the owner of the property from demolishing the property in its entirety, reasoning that “what cannot be viewed, seen, heard or felt, cannot be imperfect and cannot affect the honour or reputation of the author”. Therefore, the Court refused to uphold the claim of the Plaintiff architect.
Counter View and Analysis
It is submitted that the above apparent subjugation of moral rights to a property right in land is resolved by a little exercise in semantics. The author submits that the term[i] moral rights itself suggests an unconditional right rather than a statutory right that is subject to statutory limitations. Thus, moral rights are not inferior to statutory rights, if anything, they are superior. Thus, the scheme of interpretation of a moral right should be to give it precedence over another statutory right (in this case, one’s right to property in land) because, the term moral right itself means that it is not rooted in a statute and does not derive its authority from the statute and hence, is not subject to any statutory shortcomings of lack of comprehensiveness. In other words, the statute is merely recognizing it; it is not establishing or defining it. It must, therefore, be given its natural meaning and not whittled down by another statutory right, unless expressly provided for. However, the Court in this decision has given precedence to strict statutory interpretation over a liberal interpretation of abstract rights of the architect.
Per section 57(1)(b) of the Copyright Act,1957, “the author shall have the right to restrain or claim damages in respect of any distortion, mutilation, or other act… if such.. would be prejudicial to his honour or reputation”, it is important to note the phrase “or other act” meaning that, in certain cases, depending upon the facts and circumstances, an act not being distortion or mutilation per se, may also qualify as an act reducing the integrity of the architect, if it is prejudicial to his honour or reputation. It is humbly submitted by the author that in cases of work involving an acclaimed architect, reducing the building to rubble, would be an act prejudicial to architect’s reputation as the existence of work is public knowledge and the fact that it has been destroyed may cast a negative aspersions on the quality and viability of design itself.
Interestingly, this judgment likens demolition of the building to a mere ceasing of the display, in which case, the exception as spelt out in section 57 (1) (b) applies, thereby, not constituting an act prejudicial to the author’s honour or reputation. It is humbly contended that the exception as spelt out in this section, cannot apply to the instant case, because failure to display is absolutely not the same as making the building cease to exist.
As was also contended by the Plaintiff’s counsels and remained un-addressed in the judgment, the right to integrity in a work of one’s creation also includes right against complete demolition of one’s work as it effectively reduces the corpus of one’s artistic work and reducing such a famous buildings to rubble negatively affect the credibility of the author. It is to be noted that an artist is as good as his portfolio of work. Therefore, an act of demolition of a building is indeed an act affecting the reputation of the architect.
Position in the United States of America
To get a drift of the scope of the right of integrity in other jurisdictions, one may refer to section 603 of the Visual Artists Rights Act (VARA), U.S legislation. It provides that “the right of integrity permits the artist to prevent the use of his or her name as the author .. in the event of a distortion, mutilation, or other modification of the work which may be prejudicial to his or her honour or reputation…prevent the destruction of a work of a recognized stature”. Seen in the light of this, it becomes abundantly clear that when it comes to works of architecture that have achieved discernible public distinction over time, right of integrity would also extend to scenarios of complete destruction and leave no trace of work. The mere fact of apparent subjectivity of this criterion does not mean that courts can refuse to enforce the moral rights of architects.
Also, the petition demanded that the work be reconstructed at the same location or another location of similar prominence. It is important to note that the petition was not, in effect, claiming a right on any particular piece of land, rather asking protection for the right to the integrity of an architect by reinstating the building in its original form and glory.
The author submits that Courts should endeavour to give meaningfulness to the author’s moral rights as ordained in the Berne Convention and as adopted into section 57 of the Copyright Act. The courts ought to develop a line of jurisprudence for protecting works of architecture that have achieved discernible public distinction over time.
[i]David Vaver, Moral Rights Yesterday, Today, and Tomorrow) 7(3) International Journal of Law and Information Technology 271, 272 (1999) available at http://www.worldlii.org/int/journals/lsn/abstracts/915083.htmllast seen on 7/18/2019.