[Commons-Law] (no subject)

[Shwetasree Majumder]

Dear all,

The Amarnath Sehgal v. Union of India case (as most of you who've read the 
Delhi papers today already know) was decided by Justice Pradeep Nandrajog on 
the 21st of February 2005.

The case was one where an eminent sculptor sued the Government of India for 
a violation of his ‘Moral Rights’ in a mural that had been created by him 
for display on the walls of a prominent government building and which had 
been unceremoniously taken down, distorted, mutilated and damaged by the 
Government. Although the 140 feet by 40 feet bronze mural had been sold by 
the sculptor to the Government of India, who by virtue of the contract 
signed by the sculptor also became the owners of the copyright in the said 
work, this decision acknowledged that “the author has a right to preserve, 
protect and nurture his creations through his moral rights”.

The decision talks at length about the length and breadth of moral rights 
and argues that destruction can also be prejudicial to reputation as even 
mutilation is a 'treatment of a work' that renders it imperfect.

The judge goes on to hold that Sehgal's work constitutes the cultural 
heritage of India which the government is obliged to protect by virtue of 
its own international commitments such as those enshrined in the Convention 
on the Means of Prohibiting and Preventing the Illicit Import, Export and 
Transfer of Ownership of Cultural Property, the Convention Concerning the 
Protection of the World Cultural and national heritage, The ICESCR and the 
UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. The 
said commitments are read into the Indian law by the judge through the 
Vishakha route. The judge has also noted that the Government has 
specifically outlined its commitment to Art and Culture in the 10th Five 
Year Plan and therefore it has the following three-fold obligations:
1. respecting
2. protecting and
3. preserving cultural rights.

Thus the hitherto ambiguous moral rights of artists and authors in India 
have been given a liberal interpretation by the judge who has ultimate held 
that:

1.the mural is to be returned in two weeks to the plaintiff
2. all rights in the mural will vest in the plaintiff
3. the plaintiff can recreate the mural in any place or even sell the same
(NOTE: the mural, by the way, on an estimate of the market value of the 
bronze used alone is about 1 crore as of date)
4. damages of 5 lakhs payable in a month and if not paid within the said 
date then with 9per cent simple interest
5. costs

you may contact me personally for any further details of the case.

Shwetasree
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