Infringement of Moral Rights in Copyright: Evolution through

Supreme Court Jurisprudence

Case Background:

In a significant ruling on moral rights under Nepal's Copyright Act 2059 B.S., the Supreme Court of Nepal established an important precedent regarding remedies for moral rights violations in intellectual property law.

The case revolves around a copyright dispute between an author (plaintiff) and a publisher (defendant), involving the violation of the author’s moral rights under the Copyright Act, 2059 B.S. Puskar Joshi and other authors created Grammar for Communication Book-2, with layout design by Binesh Chaudhary, illustrations by Umesh Adhikari and manuscript by Manoj Satyal of New Nepal Publication Pvt. Ltd. On 2067/06/25 they sold the economic rights for publication and distribution to New Nepal Publication Pvt. Ltd.

However, in 2011 A.D., Standard Publisher & Distributors Pvt. Ltd. and Samjhana Pokhrel unlawfully reproduced the book without permission, altering its content, changing the preface and attributing the authorship to others, including Tika Lamichhane, Samjhana Pokhrel, Gopal Krishna Bhattarai, Kali Prasad Pokhrel and Dora Lama. This unauthorized publication led to a financial loss of Rs. 8,00,000, prompting Pushkar Joshi to file a complaint on 2068/03/26 for copyright infringement.

During the investigation, evidence was gathered, including four complaint applications by Pushkar Joshi, a letter from the company registrar’s office, statements from the arrested defendants (Samjhana Pokhrel, Kali Prasad Pokhrel, and Gopal Krishna Bhattarai), and copies of the disputed books. The evidence showed that the defendants Samjhana Pokhrel, Kali Prasad Pokhrel, Gopal Krishna Bhattarai, Tika Lamichhane, Dora Lama, Bhoj Bahadur Shah, Lakshya Bahadur K.C., Tukram Dhakal, Sher Bahadur Katwal, Mahendra Prasad Sharma Acharya, Gopal Prasad Acharya, Shiv Karki, Navaraj Mahat, and Sanjay Satyal had infringed upon the copyright of Pushkar Joshi by unauthorized editing, reviewing, and publishing a modified version of the book through Standard Publisher & Distributors Pvt. Ltd.

Legal Grounds

The complainant alleged violation under:

• Section 25(1)(a) & (c) – Unlawful reproduction and modification of copyrighted work.
• Section 27(1) & 27(2) – Criminal prosecution and compensation for damages (Rs. 8,00,000 claimed).

Moral Rights under the Copyright Act of 2059:

Moral rights are rights that protect the personal and reputational aspects of the author’s work. These rights remain with the author even after they transfer the economic rights (e.g., the right to reproduce, distribute, or adapt the work). The author retains moral rights to attribution, integrity, and revision of their work, which cannot be transferred during their lifetime. After death, these rights may be passed on to a nominated person or organization, or, in the absence of a nomination, to the author's nearest heir.

Article 6bis (3) of the Berne Convention, 1886 outlines that the means of redress for moral rights violations must be provided according to the national legislation of the country where the rights are protected. In this case, the Copyright Act, 2059 governs such violations in Nepal.

Details of the Violation

• Agreement Terms: The contract between the author and the publisher (specifically with Mr. Sanjay Satyal) outlined the procedures for modifying or editing the book. However, the publisher failed to notify the author about the necessary changes, which led to the omission of the author's name.
• Transfer of Economic Rights: The author (plaintiff) had transferred their economic rights (the right to profit from the work) to the publisher through a formal agreement. However, the moral rights (right to be identified as the author and protect the integrity of the work) remained with the author.
• The Issue: The dispute arose when the publisher, in the process of publishing and distributing books, failed to properly credit the author in one of their works. The author's name was omitted from the published book. According to the Copyright Act of 2059, this is a violation of the author’s moral rights, specifically the right to be identified as the creator of the work.

Actions Taken by the Publisher

• Public Apology and Correction: Once the omission of the author's name was discovered, the publisher took corrective actions. They issued a public correction in a national newspaper on March 26, 2012 (2070 BS), stating the error and apologizing for the oversight. Additionally, the publisher promptly recalled the affected books from circulation, corrected the mistake, and distributed the revised version with the author’s name properly included.
• Legal Considerations: The correction was seen as a good-faith effort by the publisher to restore the author's moral rights. Under the Copyright Act, it is required that moral rights violations be remedied by "moral reform" and "restoration," rather than punitive measures. This means that when the violation is corrected, the issue is considered resolved from a moral rights perspective.

Court’s Analysis and Decision

• The Kathmandu District Court ruled that the defendants did not violate the copyright as claimed in the complaints. The court found that there was no evidence to prove that the defendants had committed the offense as described in the complaints. As a result, the defendants were acquitted of the charges.
• Following the acquittal by the Kathmandu District Court, the Nepal Government appealed the decision to the Appellate Court, arguing that the defendants had indeed violated the provisions of the Copyright Act. The Appellate Court was asked to reconsider the case and provide a more thorough judgment based on the facts presented. The appeal was presented on 19th Baisakh 2070, requesting that the Appellate Court reverse the acquittal and impose penalties on the defendants. The Appellate Court, Patan, in its decision dated 4th Falgun 2070, charged the defendants with a fine of Rs. 10,000 and in accordance with Section 27(2) of the Copyright Act, ordered the defendants to pay compensation of Rs. 20,000 (twenty thousand rupees) to the plaintiff.

Supreme Court’s Decision

The court overruled the previous decision made by the Appellate Court, which had imposed fines and compensation on the publisher. It was concluded that:

• Moral Rights Violation: The court recognized that there was indeed a violation of the author’s moral rights, but the violation was corrected quickly. The public apology and withdrawal of the erroneous books were seen as sufficient remedies for this infringement. The court found that the publisher acted in a manner that respected the author’s rights after the mistake was identified.
• No Criminal Liability: Since the publisher took immediate steps to correct the error and prevent further damage to the author’s reputation, the court decided against imposing criminal penalties such as fines or imprisonment. The publisher’s actions were deemed to have mitigated the harm caused by the oversight.
• Moral Reform and Restoration: The Supreme Court emphasized that the violation of moral rights is generally not addressed through punitive measures but through moral reform and restoration. The fact that the publisher had already corrected the issue meant that the author’s moral rights were respected and restored.

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