B.N Chaturvedi, J.— Arbitraribilitv or otherwise of the suit subject, in the face of arbitration clause, forming part of an agreement between the parties, is a short question posed for consideration in the present context. An answer in affirmative forecloses trial to pave way for adjudication on the matter in controversy by an arbitrator.
2. Factual content emanating from plaintiff's pleadings takes one way back to July, 1957 when the plaintiff, responding to an offer from Central Public Works Department (defendant No. 2) of Union of India (defendant No. 1), to create a bronze mural for display at Vigyan Bhavan, New Delhi, set out to accomplish the challenging task. After extensive preparation and research, plaintiff's untiring and stressful concentrated hardwork, spanning over a period of five years, dedicated to the cause, eventually produced an acclaimed piece of artistic work manifesting itself in the form of a 140 feet long and 40 feet high mural, demonstrating a delicate balance between cultural and material aspects in national perspective - essence of rural and modern India being its theme. The mural so created found its rightful place in Vigyan Bhawan lobby right at its entrance, in the year 1962 and in due course of time acquired the reputation of being one of the important historical murals representing essential part of India's best art heritage.
3. Mural continued to occupy its place until it was pulled down and dumped by the defendants in the year 1979 in the course of partial reconstruction of Vigyan Bhawan, without permission, consent or authorisation of the plaintiff. In the process, owing to mishandling, mural lost its aesthetic and market value. Its bits and pieces, including two full figures, and part of the plaintiffs name disappeared altogether.
4. Against the aforesaid treatment meted out to his artistic work, the plaintiff lodged his complaints with all concerned and pleaded for undoing the wrong, but, without any success. His grievance remained unredressed and even a legal notice served on the defendants did not yield any result.
5. Alleged acts of commission and omission being attributed to the defendants are pleaded to be in gross violation of plaintiff's moral rights under Section 57 of the Copyright Act, 1957. The plaintiff has, in order to vindicate his cause, in the suit filed by him, seeks reliefs in the nature of:
“(a) A decree for declaration that the defendant has violated the plaintiff's special rights under Section 57 of the Copyright Act, 1957 and the defendant is liable to be directed to tender an apology;
(b) A decree for permanent injunction restraining the defendant from further distorting, mutilating or damaging the plaintiff's mural;
(c) A decree for damages of Rs. 50,00,000/- to compensate the plaintiff for the loss, injury, insult and humiliation caused by the defendant to the plaintiff's reputation and honour; and
(d) A decree for delivery-up directing the plaintiff to return the plaintiff's mural to the plaintiff for restoration at the defendant's cost and/or return of the same to the plaintiff.”
6. Instead of filing their written statement, the defendants made an application under Section 34 of the Arbitration Act, 1940 seeking stay of proceedings in the suit to facilitate reference of disputes to arbitration for adjudication, in view of arbitration agreement between the parties and for vacation of ad interim injunction granted on 29th of May, 1992.
7. The defendant's assertion is that the mural was damaged in a fire in the Vigyan Bhavan. Referring to clause 6 of the Agreement dated 31.10.1960, it is stated that the plaintiff had assigned his copyrights to the defendants and having purchased the same, the defendants are under no fetters while dealing with the mural in question. Further more, it is added that if at all the plaintiff is aggrieved, It is open to him to seek redressal of his grievance by way of reference of the disputes to arbitration in terms of clause 7 of the Agreement dated 31.10.1960 According to the defendants, the points being agitated in the suit constitute disputes referable to arbitration and in the given situation, the plaintiff cannot be allowed to continue with the suit as the proceedings are liable to be stayed to enable the parties to seek resolution of disputes between them by arbitration.
8. Assignment of his copyright in favour of the defendants is admitted by the plaintiff. At the same time, it is, however, added that notwithstanding assignment of his copy right, his moral rights comprising, ‘right of paternity’ and ‘right of integrity’, which are independent of copyright, continue to vest in him as there was no express or implied assignment or waiver thereof in the said agreement. The plaintiff maintains that having discharged his contractual obligation and the mural having admittedly remained displayed for nearly 18/20 years at Vigyan Bhavan before the same was pulled down, the defendants cannot seek to invoke the arbitration clause. According to the plaintiff, neither the disputes pertaining to infringing of his moral rights nor the reliefs being claimed by him arise out of or are in any way connected with the agreement to attract application of the arbitration clause. Lastly, without prejudice to other submissions, it is pleaded that it lies within the domain of court's discretion to decline to refer the disputes as, according to the plaintiff, the ends of justice cannot be met through arbitration proceedings since the defendant has the sole authority to appoint an arbitrator.
9. Learned counsel on either side made oral submissions to reinforce their rival contentions.
10. To lend assurance to the plea for reference of the issues involved in the suit to arbitration, the defendants rely mainly on the assignment of plaintiff's copyright to the mural in their favour.
11. Copyright is a bundle of rights which the author can exploit independently for economic benefit by exercising these rights. A copyright owner may exploit his work himself or license others to exploit any one or more of the rights for a consideration which may be in the form of royalty or a lumpsum payment. Copyright apart, the author of a work has certain moral rights as well. These are:—
1. The right to decide whether to publish or not to publish the work (droit de divulgation— the right of publication);
2. The right to claim authorship of a published or exhibited work (droit a la paternite— the right of paternity);
3. The right to prevent alteration and other actions that may damage the author's honour or reputation (droit au respect de loeuvre—the right of integrity).
(See Intellectual property by W.R Cornish, 2nd Ed. page 309).
These rights remain with the author even after transfer of copyright and the protection lasts during the whole of the copyright term. Some of the moral rights have been given statutory recognition under Section 57 of the Copyright Act, 1957 (for short ‘the Act’). Relevant part of Section 57 of the Act reads as under:—
57. Author's special right
(1). Independently of the author's copyright and even after the assign ment either wholly or partially of the said copyright, the author of a work shall have the right—
(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation ….……”
These rights are independent of the author's copyright. They exist even after the assignment of the copyright, either wholly or partially.
12. A Single Bench decision of this Court in Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. & Another, AIR 1987 Delhi 13 : 1987 PTC 87 (Del), aptly spells out the scope of Author's special rights recognised under Section 57 of the Act. This was a case where Kala Vikas Pictures Pvt. Ltd. produced a motion picture, “Samay Ki Dhara”, under assignment of filming rights of her novel, “Aap Ka Bunty. Alleging mutilation and distortion of her novel, the author sued the Producer and Director of the film for permanent injunction against screening and exhibition of the film. The trial Court declined an ad interim restraint order. The plaintiff came up in appeal. Taking note of statutory recognition of the intellectual property or Author's special right, the legal position was summed up as extracted hereunder:—
“8……..Section 57 lifts authors’ status beyond the material gains of copyright and gives it a special status.
9. Section 57 falls in Chapter Xll of the Act concerning civil remedies. Section 55 provides for certain remedies where there is infringement of copyright. Section 56 provides for protection of separate rights comprising the copyright in any work. Then comes Section 57, providing for authors’ special rights, and the remedies for violation of those rights. This is a statutory recognition of the intellectual property of the author and special care with which the intellectual property is protected. Under Section 57 the author shall have a right to claim the authorship of the work. He has also a right to restrain the infringement or to claim damages for the infringement. These rights are independent of author's copyright and the remedies open to the author under Section 55. In other words Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasised by the fact that the remedies of a restraint order or damages can be claimed “even after the assignment either wholly or partially of the said copyright.” Section 57 thus clearly overrides the terms of the Contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57. The Contract of Assignment will have to be so construed as to be consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities based on the copyright which are inconsistent with the provisions of section 57.”
13. I respectfully agree.
14. The plaintiff seeks damages, for infringement of his special rights or moral rights, as embodied under Section 57 of the Act owing to mutilation or damage to the mural. The plea relating to assignment of copyright bears no relevance to the issues involved. No express or implied assignment or waiver of his special rights/moral rights by the plaintiff, in relation to the mural, in favour of the defendants is pleaded to constitute the subject of the agreement containing the arbitration clause. The issues involved in the suit are, thus, beyond the purview of the agreement, and, therefore, cannot be held to arise out of or in any way connected with the contract. As the issues involved in the suit travel beyond the scope of the agreement, the same are held not referable to arbitration.
15. In the result, the application under Section 34 of the Arbitration Act is dismissed.
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