Moral rights in the context of Bangladesh: A supplement to copyright

The social media in Bangladesh recently saw an uproar caused by a decision taken by the Bangladesh Musical Bands Association (BAMBA).

A few days ago, BAMBA held a press briefing and declared that any artist willing to put up a commercial performance, which includes a rendition of a song from BAMBA affiliated bands in concerts, television programs, reality shows, must obtain prior written permission from the respective bands.

In a press briefing, BAMBA declared that all artist planning to put up a commercial performance which includes a rendition of a song from BAMBA affiliated bands must obtain prior written permission. PHOTO: COLLECTED

This decision received a polarising reaction from the general audience of band music in Bangladesh.

While one group of fans voiced their support to the bands in preserving the intellectual property rights, another group passionately argued that the decision would potentially limit the openness of contents created by pioneering bands that newly formed bands regularly cover in their performances.

This article will try to analyse this matter through a different approach -- by trying to bypass the regular copyright regulations and argue from the perspective of moral rights.

Moral rights, although an important aspect of intellectual property regulations, is distinct from the regular notion of copyright.

Copyright can only belong to the owners of a copyrightable work, the owner, in this case, not necessarily being the author or the creator of the work as such.

But the concept of moral rights is exclusive only to the author of the works, is inalienable, and these rights also protect the author's moral and personal interests.

While regular copyright only protects the economic interests of the copyright title holders, moral rights go beyond the extent of only economic interests.

To elaborate on the notion of these two interests, it can be stated that the authors of work share a bond with their creations that goes beyond just accumulating economic benefits from it which they wish to be acknowledged as the creators of the said work.

Moral rights, as a concept, are relatively unknown to the art or music community in Bangladesh, as it is not emphasised as much as copyright here. But in different jurisdictions all over the world, it is being enforced as statutory laws.

France, Germany and Italy can be a prime example in this regard as it has been an established principle in these countries for a long period. The United States, United Kingdom and other countries with a broad entertainment sector also incorporated these rights through various statutes and are applying these thoroughly.

Moral rights are usually a set of rights that include the author's right to claim authorship (right of attribution), the right to object to modifications of the work (right of integrity), the right to decide the time and the method of publication (right of disclosure) and the right to withdraw after a publication (right of withdrawal).

The primary international law in this regard is the Berne Convention for the Literary and Artistic Works, which Bangladesh became its signatory in 1999. Article 6bis of the Convention codified the moral rights of attribution and integrity by stating that the author shall have the right to claim authorship of the work and to object to any distortion, mutilation, or other modification of, or other derogatory action concerning the work, which would be prejudicial to his honour or reputation.

Apart from the Berne Convention, the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights are also the major international treaties that refer to moral rights.

Although there is no specific legislation in Bangladesh for moral rights, the Copyright Act, 2000, hinted to the notion of moral rights in section 78 of the Act, terming these rights as author's "special rights".

The language of this provision relatively similar to Article 6bis of the Berne Convention. It should also be mentioned here that this right has been given to the author irrespective to the fact that he holds the copyright to it or not.

Therefore, authors in the context of Bangladesh are also given protection over moral rights, specifically over rights of attribution and integrity, according to Bangladeshi laws as well.

Let us delve into these two rights. Right of attribution enabled the author to claim authorship of the work, which in turn lets the author determine if and how his/her name shall be affixed to the work.

That means the author has the right to be credited as the actual creator of the work, and he is also entitled to receive remedy if someone falsely uses his or her name as the author of the work.

So in a hypothetical scenario where the author is not the copyright holder, if he is not given his due credit as the author of the work or if the authorship is falsely attributed to someone else, he can be named as the creator of the work.

The recent ongoing dispute over the copyright of popular Masud Rana book series can be discussed through the scope of this right. Even if Sheba Prokashoni has the copyright of the books, Sheikh Abdul Hakim can still be credited as the author.

Right of integrity, on the other hand, gives the author the right to prohibit any kind of modification on his work that has been done without his consent. The said modification can be done to improve the work or to portray the work in a different light, but as long as it is done without the author's consent, the author can prohibit the intended use of it.

In light of this discussion, put into the context of the decision taken by BAMBA, it can be said that the creators of the original music do have the moral right to require their consent to be taken before other musicians on a commercial basis cover their music.

But it is crucial to determine who is the actual owner of the said work. Also, rather than relying on just one provision in the copyright statute, the Bangladeshi laws related to moral rights should be strengthened so the authors receive their dues.

The writer is a lecturer of law in American International University-Bangladesh and lead vocalists of the bands Arekta Rock Band and Severe Dementia.