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Intellectual Property Rights


NAVIGATING THE RIGHTS OF A GHOSTWRITER UNDER THE COPYRIGHT ACT

June 15, 2024

*Ms. Anandita Srivastava

INTRODUCTION

“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The concept of copyright emerges from the umbrella term of intellectual property rights, which connotes creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. In India, the Copyright Act of 1957 entails various provisions to protect the authors' original work from infringement. As per Section 13 of the Act, copyright shall subsist throughout India in first, original literary, dramatic, musical, and artistic works; second, cinematograph films; and third, sound recordings.

TWO CATEGORIES OF RIGHTS UNDER THE COPYRIGHT ACT

Under the Act, the author gets exclusive economic rights with respect to his original work, including, inter alia, the ability to duplicate it, distribute its copies, or perform it for the public. Further, the author gets special rights, commonly called moral rights, which are independent and parallel to the author’s economic rights. The author’s special rights entail, first, the right to paternity and second, the right to integrity. The former demands that the author must be attributed, credited, or identified for his work whenever it is reproduced or disseminated to the public in any medium, whereas the latter deals with protecting work from any modification, distortion, or mutilation.

GHOST-WRITING

The Case ‘Louis Vuitton Malletier v. Santhosh’  is a recent example. The plaintiff company, Louis Vuitton Malletier, incorporated under the laws of France was a French Luxury fashion and leather goods company owning the brand ‘Louis Vuitton’ since 1854. The brand owns the trademarks of ‘Louis Vuitton’, the ‘LV’ logo, and the ‘Toile monogram’, which has been acquired the status of ‘well–known trademarks’ from the Indian Trademark Office. During a periodical market survey conducted by the plaintiff in January and February 2018, it was found that there had been manufacturing and selling of counterfeit goods bearing their trademarks by Indian entities. A single judge bench of Amit Bansal, J granted a permanent injunction to the plaintiff on all the trademarks owned by them. Further, the court held that the defendants had blatantly infringed the said marks and hence, were entitled to pay costs of Rs 9. 59 lakh to the plaintiff.

Ghost-writing is argued as ethical, depending on the bona-fide intent of the transaction. Someone may possess the necessary training and expertise on a subject but lack the artistic skills to articulate their ideas well. In such a scenario, a ghostwriter must prepare the material for the ostensible author. On the contrary, some experts caution that such a practice is unethical in nature, ipso facto, as ghostwriters can be used for academic plagiarism connoting unfair advantage, or it can pave the way for misinformation.

The Act aims to protect the author's moral and material interests, but the ghostwriter deliberately transfers his rights to the ostensible author. In this unique scenario, the dilemma remains whether ghost-writing can be regulated in India to protect the author’s rights or is unethical and illegal to begin with.

TRANSFER OF ECONOMIC RIGHTS BY THE GHOSTWRITER

The Act protects the expression of an idea and not the idea itself; therefore, the problem arises when the ghostwriter becomes the first owner of the work. To be the author of a work, a person must accordingly do more than contribute ideas to the ghostwriter. An ostensible owner can be termed as the first owner of the copyright if the agreement entered between him and the ghostwriter explicitly entails: first, the copyright being transferred is in the course of the contract of service, and second, the work produced will be published or reproduced for publication. Since the ostensible owner can use the copyright over the author’s work once it is voluntarily transferred under a contract of service, the economic rights are easily transferred in the process.

TRANSFER OF SPECIAL RIGHTS BY THE GHOSTWRITER

Special rights ensure the protection of the author’s personality, which is intrinsically embedded in his work. In the case of Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr., the court opined that the Act makes it clear that the author possesses special rights even when copyright to a work is transferred, in whole or in part. Further, in Amar Nath Sehgal vs. Union of India, the court held that the moral rights of the original author of the work cannot be waived or transferred as they are the soul of the author’s work. However, this broad interpretation of special rights under Section 57 of the Act by the judiciary was short-lived, as in the recent case of Raj Rewal v UOI & Ors, the Delhi high court confused the concept of special rights in the Indian regime. The court held that if there is complete destruction of the author’s work, then at the outset only, there are no moral rights left to the author.

By this understanding, a ghostwriter can transfer his economic rights to the ostensible author, but since the special rights are the soul of his work, they cannot be transferred or waived. However, if the ostensible author completely destroys the ghostwriter’s work, the ghostwriter cannot claim a violation of his moral rights. With the destruction of work, there are no moral rights left to the ghostwriter at the outset. Suppose the judiciary and legislature were to follow this logic. In that case, since there are neither economic nor special rights left with the ghostwriter, he cannot be regulated under the Act, and this practice shall be termed illegal.

UNDERSTANDING OF RIGHTS IN FOREIGN JURISDICTIONS

French law is where moral rights or droit moral first appeared. The droit moral was introduced to the Berne Convention of 1886 by the Rome Act of 1928. The Convention's contracting parties retain the option to determine the duration or tenure of an author’s moral rights; thereby, the term ghost-writing is not explicitly mentioned in the statutes of various other countries.

In the Philippines, ghostwriters retain the copyright of the work unless both the economic and special rights are waived off by a written stipulation. In stark contrast to the Philippian law, the work made for hire provision of the United States Copyright law states that the employer is to be considered the author of the work and owns all the rights unless there is an agreement to the contrary. Further, in the US, the special rights of authors may be waived if the author expressly agrees to such waiver in a written instrument signed by him, but the same cannot be transferred to the ostensible author. Alternatively, the US law on trademark recognises the concept of reverse passing-off, which misattributes or falsely attributes the rights of the author. So, by this logic, when the ghostwriter’s work is made available to the consumer under a famous brand name that has become a trademark, there happens to be a “misleading representation of facts”.

CONCLUSION

The lack of clear laws on ghost-writing leaves us to find the solution to the debate's confusion. In the Indian context, the Act provides a comprehensive framework for protecting original works, encompassing both authors' economic and special rights. It currently does not allow for the alienation of special rights of the author, placing ghost-writing in a legally precarious position until the entirety of the author’s work has been destroyed. While one cannot disagree that ghost-writing strips the authors of their moral rights, it can be a great boon to society under different circumstances. From medical and legal scholars to literary artists, celebrities, and politicians, they all resort to ghost-writing for different reasons. Therefore, leaving ghost-writing unregulated or making it completely illegal will create many new problems.

To find a potential solution to the dilemma of having specific provisions under the Act determining the rights of the ghostwriter, the question of the validity of ghost-writing must be determined on a case-to-case basis, considering the cost-benefit analysis. For instance, ghost-writing shall be allowed, and the moral rights of the ghostwriters shall be protected in autobiographies of famous personalities because, herein, the public, in general, is not under the notion that they are being deceived by the author. However, the same may be reprehensible in a literary field, where the question of deceiving the public comes into being or in the field of academia, where integrity is of utmost importance. Therefore, by either creating strong and clear grounds for attribution of authorship under the copyright law or recognising the practice of reverse passing off in cases of ghost-writing in India, the Act can ensure that the rights of ghostwriters are regulated and protected.

REFERENCES

  1. WIPO, ‘What is an Intellectual Property’, https://www.wipo.int/about-ip/en/.
  2. Copyright Act, 1957, Act of Parliament 1957.
  3. Nidhi Kumari, The Moral Rights of an Author, Academike (Apr.  6, 2015), https://www.lawctopus.com/academike/moral-rights-author/#_ednref3.
  4. Sana Singh, India: Judiciary’s _ Approach To Moral Rights Under Copyright Law, Singhania Secretarial Consultancy LLP (Feb.19, 2021), https://www.mondaq.com/india/copyright/1037980/judiciarys-approach-to-moral-rights-under-copyright-law.
  5. Ghostwriters and Copyrights: Your Guide To Copyright Protection When Hiring A Ghostwriter, The Writers For Hire (July 20, 2021), Https://Www.Thewritersforhire.Com/Ghostwriters-And-Copyrights-Your-Guide-To Copyright-Protection-When-Hiring-A-Ghostwriter/.
  6. Maria Scheibenreif, Ghostwriting, Crisol,  https://www.crisoltranslations.com/our-blog/ghostwriting-ethicalorfraudulent/#:~:text=The%20ethics%20of%20ghostwriting%20can,individuals%20and%20organizations%20c mmunicate%20effectively.
  7. Rohit Kamath, Ghostwriting and Copyrights: Law & Ethics, LinkedIn (Apr. 3, 2018), https://www.linkedin.com/pulse/ghostwriting-copyrights-law-ethics-rohith-kamath.
  8. Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. & Anr, AIR 1987 Delhi 13.
  9. Amar Nath Sehgal vs. Union of India 2002 SCC OnLine Del 390.
  10. Raj Rewal v UOI & Ors AIR ONLINE 2019 DEL 911.
  11. Susan P. Liemer, On the Origins of le Droit Moral: How Non-Economic Rights Came to be Protected in French IP Law, IP LAW J. 19 (Oct. 2011).
  12. Intellectual Property Code of the Philippines (Republic Act No. 8293) (2015 Edition) § 178.4, § 195.
  13. 17 U.S. Code § 201.
  14. Jane C. Ginsburg , The Author’s Name as a Trademark: A Perverse Perspective on the Moral Right of ‘Paternity’?2005 Columbia L. School.
  15. 15 U.S.C. 1125 (The Lanham Act, § 43).
  16. Marlena Jankowska, On the implications of the unalienability of the right of authorship for ghost-writing contracts, Rev. Euro. & Comparative L. 18 (2013).
Author:

*Ms. Anandita Srivastava
3rd BA. LL.B. (Hons.) Student, National Law University Jodhpur.

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights(ACIPR) and the Centre does not assume any responsibility or liability for the same.