ARE EXAMINERS VIOLATING YOUR MORAL RIGHT?

It’s quite common to encounter examination scores grossly disproportionate to one’s performance. The ensuing frustration compels you to bang the door of every institutional grievance redressal mechanism. However IP litigation is rarely utilised to challenge the evaluator’s wisdom!

By virtue of Section13 of the Copyright Act, 1957, a copyright subsists in any original literary work. It is also deemed to exist in a peculiar arrangement or compilation of data such as a telephone directory. It may be thus inferred that an answer sheet comprised of original solutions or analysis derived through referencing, is capable of copyright protection.

It is important to know that the bundle of rights that define the scope of copyright protection, are not limited only to economic exploitation rights. Sec 57 of the copyright act introduces the concept of perpetual moral rights. The rights conferred by sec 57 of the copyright act are two fold:

(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:

Sec 57 [b] is of particular interest in the present context. The Delhi High Court in Amar Nath Sehgal v. Union of India, explored the scope of moral rights. Wherein a mural created by Amar Nath Sehgal, was pulled down and removed from the defendant’s lobby, away from the public view without the consent or permission of the plaintiff. The Court held that the plaintiff has a cause to maintain an action under Section 57 of the Copyright Act, 1957 even though the copyright in the mural stands vested in the defendants.[1]

Thus the words ‘or other act, prejudicial to the author’s honour or reputation’, may awaken a plethora of possibilities. The term, ‘prejudical to reputation’, if construed in the light of tort law, would include a false statement that tends to injure one in his profession or trade.  A student’s honour, reputation and professional prospects are severely damaged by a grossly mistaken evaluation of his intellectual property! Thus when an examiner negligently fails a candidate, who deserves distinction, he maybe guilty of performing such ‘other act’[2], that violates the author’s moral rights.

The validity of the above argument is open to challenges. However, its acceptance would lead to a phenomenal rise in copyright litigation and probable increase in credibility of evaluation!

-Gauri Shidhaye
III BSL LLB,
ILS Law College, Pune

[1] http://en.wikipedia.org/wiki/Amar_Nath_Sehgal_v._Union_of_India

[2] SEC 57 [B]

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