Decoding IPR

Introduction
Ghostwriting has long been a contentious issue especially regarding the ethical and legal recognition of authorship. While the anonymity of ghostwriters is often contractually agreed upon, moral rights, particularly under Section 57 of the Indian Copyright Act, open debates about whether such agreements can ethically or legally suppress recognition.

Ghostwriting involves creating a work attributed to another individual, often cemented by confidentiality agreements. Ethically, it raises questions about intellectual honesty and the fair acknowledgment of creative contributions. A ghostwriter’s demand for recognition, despite legal waivers may appear contradictory. However, this demand becomes relevant in the context of moral rights which uphold the creator’s connection to their work beyond economic benefits. The primary argument for recognition lies in the intellectual labor invested by ghostwriters as their work shapes the final output even if their name remains absent.

Understanding Moral Rights in Copyright Law
Section 57 of the Indian Copyright Act grants authors two significant moral rights:  

1. Right to Paternity: The right to claim authorship and prevent others from misattributing or plagiarizing the work.  
2. Right to Integrity: The right to prevent distortion or modification of the work that could harm the author’s reputation.  

In Mannu Bhandari v. Kala Vikas Pictures, the Delhi High Court’s stance on moral rights was demonstrated. Bhandari, whose novel was adapted into a film, contested the changes made to her work. The court held that moral rights exist independently of economic rights and cannot be overridden by contracts. This interpretation the enduring nature of moral rights and their role in protecting creative identity.

Can Moral Rights of Ghostwriters Override Contractual Waivers?
Typically, contracts between ghostwriters and their clients waive any claims to authorship or acknowledgment. However, ethically, their contribution to the final work warrants acknowledgment, particularly in cases where the anonymity clause was imposed unfairly or where misrepresentation occurs. From the perspective of natural justice, the ghostwriter’s labour, intellect and creative input should not be dismissed as mere ‘work-for-hire’. 

While Section 57 of the Indian Copyright Act emphasizes the inalienable moral rights of authors, Section 17 focuses on ownership of copyright typically granting rights to the employer or commissioner in cases of ‘work made for hire’. This creates an inherent tension between the two provisions. Section 17 allows for the transfer of economic rights often assigning the work’s copyright to a commissioning party such as a publisher or client while Section 57 safeguards the creator’s moral rights ensuring their connection to the work remains intact regardless of ownership.

In the context of ghost-writing, this contrast becomes particularly relevant as one hand, Section 17 legitimizes contracts that assign all rights including authorship to the commissioning party and on the other hand, Section 57 prevents the complete erasure of the creator’s identity by protecting their right to paternity and integrity. 

From an international standpoint, the provisions of Section 57 are rooted in the Berne Convention. However, moral rights are excluded from the scope of the GATT and TRIPS agreements. As a result, these rights lack access to enforcement mechanisms and dispute resolution under these frameworks. While remedies for copyright infringement are also applicable to moral rights violations, the remedies provided by copyright law for moral rights are limited. But, through liberal judicial interpretation additional remedies have been made available to authors extending the protection of their moral rights.

For instance, in Amar Nath Sehgal v. Union of India the Delhi High Court reaffirmed the inalienable nature of moral rights. Sehgal’s mural, commissioned and later mishandled by the government, became a symbol of the judiciary’s inclination to uphold creators’ rights. The court ruled that moral rights, such as integrity and attribution cannot be disregarded even when economic rights are transferred. 

On the other hand, the counterarguments in favour of upholding legal waivers focus on the sanctity of contracts. Ghostwriters often voluntarily enter agreements that exchange anonymity for financial compensation. Ethical demands for acknowledgment after accepting such terms can undermine contractual integrity, potentially disrupting established practices in the creative and publishing industries. Moreover, confidentiality agreements are essential to sustain collaborative processes especially in high-stakes industries like publishing, filmmaking and speechwriting.

However, the judiciary’s broad interpretation of the special rights under Section 57 of the Copyright Act proved to be short-lived as in the recent case of Raj Rewal v. UOI & Ors., the Delhi High Court ruled that if an author’s work is completely destroyed, the moral rights associated with it cease to exist.

Applying this principle to ghost-writing, while a ghostwriter may transfer their economic rights to the credited author, the special rights being intrinsic to the work typically cannot be transferred or waived. However, in exceptional cases where the credited author completely destroys the ghostwriter’s work, the moral rights are also extinguished. In such circumstances, the ghostwriter cannot claim a violation of moral rights because the rights effectively vanish with the destruction of the work. Consequently, without economic or special rights, the ghostwriter falls outside the scope of protection under the Act. This dynamic in ghost-writing raises concerns about consumer rights as it could lead to the ostensible author engaging in misrepresentation without accountability.

The Way Forward
The absence of explicit laws addressing ghost-writing leaves the debate unresolved, demanding for alternative solutions. In India, while the Copyright Act provides a legislation for protecting original works covering both economic and moral rights of authors, it falls short when it comes to extending these protections to ghostwriters.

Ghost-writing inherently deprives writers of the rights that are typically granted to creators of original works. Despite this, it remains an indispensable practice in various fields and can significantly benefit society. Professionals such as medical and legal experts, literary artists, celebrities and even politicians frequently rely on ghost-writing for different purposes. 

To address this challenge and establish the rights of ghostwriters, it is essential to evaluate the validity of ghost-writing on a case-by-case basis through a proper analysis. For instance, in the case of autobiographies by public figures, ghost-writing should be permissible and the moral rights of ghostwriters should be safeguarded since the public is generally not misled about the true authorship. Conversely, in areas such as literature or academia where deception and integrity are significant concerns, ghost-writing may be inappropriate or even unethical.

In the context of Artificial Intelligence (AI), some argue that AI-generated works should receive copyright protection in exceptional cases. This is because human input initiates the creative process and AI, like ghost-writing, transforms these ideas into original works. However, a key distinction arises here where AI does not seek compensation for transferring copyright, nor can such a transfer be considered voluntary. This is because AI operates solely based on human commands and cannot act independently of them.

Conclusion
Moral rights mean something more than to earn livelihood. It reflects personality of author, so it is always deals with reputation & integrity of author’s work. In conclusion, while moral rights are an indispensable aspect of copyright law, they remain underappreciated and inconsistently enforced across jurisdictions. Ghostwriters, who significantly contribute to the creative process often find their moral rights overlooked due to confidentiality agreements or contractual waivers. Judicial precedents such as Mannu Bhandari and Amar Nath Sehgal illustrate the courts’ inclination to uphold these rights and shows that a fair approach that acknowledges the contributions of ghostwriters while honouring contractual agreements can help protecting the value of creative work.