Enabling cultural and literary heritage to flourish
Pakistan’s current intellectual property framework falls woefully short of safeguarding the interests of its most gifted people. The present environment for artists, writers, musicians, etc, (collectively ‘authors’) is deplorable and robs them of their right to exercise control over their own creations.
In developed countries, an author of a copyright work is entitled to a set of ‘inalienable’ rights that persist in him regardless of whether he retains the ownership of the economic rights or not. These are termed his ‘moral rights’. They protect his personality interests and are based on the premise that his personality permeates his work and any attack on the work constitutes a direct attack on his personality.
Importantly, protecting the moral rights of an author creates a sense of security and provides an environment conducive for harnessing and promoting talent.
Moral rights enshrined in the Berne Convention for the Protection of Literary and Artistic Works include the right to attribution, the right of disclosure, the right to integrity of the work and the right to withdraw it from circulation. As a party to this Convention, Pakistan is obligated to give effect to these rights under its domestic legal framework. In this context, while the Copyright Ordinance 1962 might seem like a step in the right direction, upon closer scrutiny this legislative effort in fact represents a political compromise that undermines the very essence of the protection afforded by the Convention.
The right of integrity granted by the Convention allows an author to ‘object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation’
The right of integrity granted by the Convention allows an author to ‘object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.’ Apart from the non-pecuniary nature of the interests protected by the right, it also plays a vital role in protecting the commercial value of the work of the author. The Copyright Ordinance (Section 62) makes a feeble attempt at implementing this. Although it makes the right inalienable i.e., the right exists even after the copyright has been assigned or relinquished, it fails to define the parameters and scope of the right itself. With what can be termed as the ‘right of integrity’ in Pakistan, an author can thus hardly be sure of the exact situations covered by it. Hence, there is little or no awareness about the existence of such rights and cases with respect to infringements of moral rights remain a rarity.
Consider the hypothetical situation where an author’s poetry is translated into French and the meaning and essence of it is completely transformed. Under the present regime, it seems unlikely that such translations would be an infringement of the right of integrity since they do not neatly fall under the definitions of ‘distortion or mutilation’.
Consider another situation where Gulgee’s painting is displayed in an exhibit with pornographic paintings and as a result it creates circumstances that prejudicially affect his honour. It is unclear if section 62 of the Ordinance would come to the rescue of a celebrated painter considering that even though the painting has not been physically ‘distorted or mutilated’, it sends out a different message than that envisioned by the artist and adversely affects his reputation.
Pakistan’s international commitments also oblige it to afford its authors the right of attribution i.e., the right to insist that the author’s name continues to be associated with the work even after the copyright has been relinquished or assigned. In addition to conferring economic benefits, this right also enhances the public interest since it affords public information about the source and creator of the work.
Consider the hypothetical situation where an author’s poetry is translated into French and the meaning and essence of it is completely transformed. Under the present regime, it seems unlikely that such translations would be an infringement of the right of integrity since they do not neatly fall under the definitions of ‘distortion or mutilation’
The Copyright Ordinance fails to give full effect to this right as well. The only specific reference made in this context is in its Section 57A which makes it mandatory to display the name and address of the author with regards to records and video films. Additionally, even though the right ought to be ‘inalienable’, under our domestic framework, the author is not prohibited from contractually waiving it off. This reflects the reluctance of the Pakistani Government to provide an appropriate regime of intellectual property that is supportive of its authors.
In addition to the rights of integrity and attribution, authors are also entitled to the rights of disclosure and withdrawal from circulation. While the right of disclosure allows an author to determine when his work is ready to be displayed to the public, the right of withdrawal allows him to determine when his work should be withdrawn from public exposure. Lamentably, Pakistan’s legal system does not yet recognise either of the two rights.
On the contrary, the French moral rights regime acts as the beau ideal of protecting authors. In the Whistler case, James McNeil Whistler had been commissioned to paint a portrait of Anthony Eden’s mother for a prize between 100 to 150 guineas. However, due to a dispute between the parties, Whistler refused to deliver the painting as per the terms of the contract. The French court sustained the wilful refusal by the painter and further held that such contracts were of a special nature since the painting could only be acquired by the commissioner when the artist puts it at his disposal. The court’s decision illustrates that the moral rights of an author may at times even override the general principles of contract law.
The reluctance of the government to protect the above mentioned rights is grounded in its false logic that an author’s interests can also be protected by the laws of contract, defamation and passing off. But crucially, the protection afforded by such diverse regimes is insufficient and unsystematic and ends up being a problem and a hindrance rather than a solution.
The need of the hour, therefore, is to institute a robust moral rights regime that encourages authors and enables our cultural and literary heritage to flourish.
