Mira T. Sundara Rajan*
February 21st, 2025 marks the 20th anniversary of a landmark Indian judgement on copyright law, Amar Nath Sehgal v Union of India. In this case, the Delhi High Court affirmed an artist’s right to protect his work from harm in a uniquely passionate and resourceful ruling. It is an important judgement, not only for Indian law but also for the international community. Its significance has only grown over the years, and the principles that it stands for are now newly relevant in the era of artificial intelligence.
The case involved an ambitious artwork by the eminent Indian sculptor, Amar Nath Sehgal: a mural that was commissioned by the government of India to adorn the Vigyan Bhawan building in Delhi. It quickly came to be considered a major artistic achievement. Some years after its installation, however, the government took down the mural as part of a renovation project in the building, and it was severely damaged. When the artist learned what had happened, he took the government to task, initiating a legal case to prevent any further harm to his work and hold the government accountable for its actions. He relied upon Section 57 of the Indian Copyright Act, which provides for the rights of artists to be attributed for their work and to protect their work from harm.
Under the Indian Copyright Act, these rights of “attribution” and “integrity” are protected as “special rights of the author.” They originate in the international theory of copyright law known as “moral rights”: personal rights of the author that are distinct from the intellectual property in a creative work, and that remain vested in the author independently of the ownership of that work. Depending on the jurisdiction, they can subsist forever. This is made possible by the conceptual basis underlying moral rights: they represent the permanent and unbreakable relationship between a creator and his or her work, and they reflect the idea that harm to the work may cause harm, both professional and personal, to its creator.
Moral rights are traditionally associated with European jurisdictions, where they first developed in French court cases of the 19th century. They were subsequently incorporated into the leading international agreement on copyright law, the Berne Convention for the Protection of Literary and Artistic Works, in 1928. As a signatory to Berne, India has protected moral rights under section 57 of its copyright law since 1957, when the first modern Indian copyright law was adopted.
Among other things, the presence of moral rights in Indian law signified a departure from British law, which did not explicitly recognize moral rights until 1988[1]. In India, however, moral rights were far from another foreign import. From an Indian perspective, moral rights had deep cultural resonance, reflecting the power and prestige traditionally associated with the arts in Indian culture. Their presence in Indian law paid homage to Indian history and articulated the possibility of a continuity, however fragile, between the country’s glorious cultural past and its future. They represented the cultural aspirations of modern India as expressed in its copyright law.
But, in practice, implementing these provisions proved to be a struggle. Mr. Sehgal’s mural was originally put on display in 1962; the damage to the work occurred in 1979. But the first meaningful legal intervention in the case did not come until 1992! At that time, the Delhi High Court initially granted a preliminary injunction aimed at preventing the government from moving the work again, or undertaking anything that might further damage it.[2] It is worth quoting from this remarkable decision, given by a judge who was deeply concerned about the vulnerability of artists and the difficulty of gaining recourse through the legal system in cases such as these. He wrote:
“In a country rightly proud of its creativity and ingenuity, men who can hardly distinguish the heads of Venus from those of Mars cannot be allowed to decide the fate of artists who create our history and heritage. The cry is ‘Ils ne passeront pas,’ and in such a situation Indian courts will always be found dynamic and responsive. Section 57 of the Copyright Act provides the light.”
Thirteen years had passed. Thirteen more would pass before a final decision was issued by the Delhi High Court. In 2005, this judgement at last vindicated Mr. Sehgal’s complaint fully. It also established a new precedent in both Indian and international law for the understanding and interpretation of moral rights. In the process, a new theory of copyright law was elaborated – a theory that arguably deserves to be more widely known, invoked, and applied.
This theory was one that had previously been proposed by me in a short article on Mr. Sehgal’s case which I published in the early 2000s.[3] Ironically, one of the government’s defenses in this case hinged upon the fact that the artist’s work had been very badly damaged – so much so that it could even be said to have been effectively destroyed. Common sense would suggest that destroying a work is even worse than damaging it and should attract more serious penalties under the law. However, under traditional interpretations of moral rights, the opposite is true. Damage will have legal consequences, but destruction (certainly prior to the Sehgal case) might have none.
What led to this curious principle? The explanation is a subtle one, turning largely upon the language of Article 6bis of the Berne Convention on moral rights. According to this provision, a violation of the moral right of integrity depends on showing that the mistreatment of the work also has a negative impact on the artist’s reputation. Once the work is destroyed, however, it can no longer be seen in any altered form. As a result, according to this theory, the destruction of the work can have no reputational effect on the author.
In my article, I argued against this position. My rationale was that it was fundamentally inaccurate to say that the destruction of a work of art would not affect the artist’s reputation negatively. On the contrary, destroying a work effectively erases it from an artist’s catalogue. As a result of this absence, an artist’s reputation could be reduced, harmed, or even, in the case of an artist with few or single works – such as the literary example of Emily Bronte, whose sole published work is the masterpiece, Wuthering Heights – destroyed. I called this the effect of the destruction on the artist’s “creative corpus.” This phrase was adopted by the Delhi High Court and used throughout its decision to discuss the significance of destroying an artwork. The court agreed that the moral right of integrity should encompass the destruction of works, due to its potential effects upon an artist’s “creative corpus.”
But there was a second element to my argument, as well. This was the profound unease that I felt, as a legal commentator, about the apparent failure of the law to protect works of art from destruction. Ultimately, such works constitute potentially valuable cultural heritage. When they are destroyed, the loss is significant, not only to the artist, but also, to the nation and perhaps the world. Society as a whole is ultimately impoverished by their loss.
With this in mind, I had begun my article on Mr. Sehgal’s case by discussing the protection of cultural heritage through international agreements on cultural property. The court shared my concerns about the heritage aspect of artworks. It agreed with my position that international agreements on cultural heritage were also relevant to the protection of artistic works under copyright law. It opined that India’s membership in these agreements had implications for the interpretation of the moral rights in section 57 of the Copyright Act.
Specifically, where valuable works of art were involved – works "attaining the status of a modern national treasure,” in the words of the court – destruction of those works would also constitute a violation of the artist’s moral right of integrity under section 57. Crucially – and notwithstanding the explicit language of the Act, which was at that time modeled on Berne – this would be the case whether or not the artist’s reputation was affected by the mistreatment. In other words, the moral right of integrity in culturally valuable works could be invoked, not only on behalf of the artist, but also, on behalf of the public. Destruction of an author’s work was prohibited because the work had become part of national cultural heritage: at heart, a public interest rationale served by the moral right of integrity.
I was privileged to know Mr. Sehgal personally. I met him through his lawyer, the distinguished Mr. Pravin Anand. My meeting with Mr. Anand was itself the result of an amazing coincidence: while I was studying for my doctorate at Oxford, we were introduced by a fellow student who had interned with his firm. Mr. Sehgal was profoundly distressed by the treatment of his work. It would be difficult to overstate the extent of the efforts that he needed to make in order to seek justice for what happened – the courage and perseverance that were required. He was completely dedicated and willingly rose to the occasion.
Although it took 26 patient years to resolve his case through the court system, Mr. Sehgal had the satisfaction of seeing it succeed. He died in 2014. And, although his work was irretrievably damaged, Mr. Sehgal’s determination to find justice created a remarkable precedent that has positively influenced the environment for culture in India. The delay in the final resolution of the case should not entirely eclipse this fact. Laws are ideally statements of principle that are capable of meaningful enforcement. In practice, enforcement is often a challenge. But the principle still is at the origin of all, even if it often represents a distant goal that society must work towards achieving.
Through these novel theories, the court protected what remained of Mr. Sehgal’s work and developed legal approaches that deserve to be explored in India and beyond. But the court also went beyond the letter of the law and situated itself as an ally and advocate for artists. Only slightly paraphrasing my article, it called for respect for the artist in the most passionate and outspoken terms:
“Authorship is a matter of fact. It is history. Knowledge about authorship not only identifies the creator, it also identifies his contribution to national culture. It also makes possible to understand the course of cultural development in a country. Linked to each other, one flowing out from the other, right of integrity ultimately contributes to the overall integrity of the cultural domain of a nation. Language of Section 57 does not exclude the right of integrity in relation to cultural heritage. The cultural heritage would include the artist whose creativity and ingenuity is amongst the valuable cultural resources of a nation. Through the telescope of section 57 it is possible to legally protect the cultural heritage of India through the moral rights of the artist.”[4]
This is why it is so important to revisit the Sehgal case two decades later, In the era of artificial intelligence, authors’ and artists’ rights now face an existential threat. Large language models underlying text and image generating technologies, such as ChatGPT and DALL-E, rely on enormous amounts of training data to develop. Much of that data is constituted by creative and intellectual works which have been used without seeking the permission of either their creators or those who may own the copyright in them, such as publishers. A number of lawsuits on these issues are currently pending in multiple countries. In the meantime, regulators are struggling to find a balance between encouraging the development of AI and protecting the rights of authors.
Sadly, the culture of the dominant technological companies is one of disregard for the prerogatives of authors and artists. Tech leaders see human creativity as an area where machines can compete and excel, possibly outperforming and replacing humans. Yet the premises underlying these claims are deeply flawed. They suggest an unwillingness, if not inability, to accept human values – a failure to acknowledge the central importance that human creativity has always had, in every human civilization that has ever existed. Authors and artists embody this reality in the highest degree. Their contributions to society through their work are incalculable.
Twenty years later, the legal and humanistic approach underlying the Sehgal judgement could help India and the world to make sense of the technological landscape that we are now traversing. It delineates a path towards a sane, productive, and creative approach to AI regulation, one that will ultimately be for the benefit of humanity.
I believe that Mr. Sehgal would feel he had not spent his time in vain.
*Professor (Dr.) Mira T. Sundara Rajan, DPhil (Oxon.) is the author of Moral Rights and the Protection of Cultural Heritage: Amar Nath Sehgal v Union of India, (2001) 10 (1) International Journal of Cultural Property 79, which informed the Sehgal judgement and is also quoted in the decision (at para. 41). A new edition of her seminal work on moral rights has just been published: The Moral Rights of Authors and Artists: From the Birth of Copyright to the Age of Artificial Intelligence, Oxford University Press (Indian edition pending)
[1] In the Copyright, Designs and Patents Act 1988, Chapter IV, available at https://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/IV.
[2] Amar Nath Seghal vs Union Of India And Others on 29 May, 1992, https://indiankanoon.org/doc/624173/.
[3]See note 1 above.
[4] Sehgal, para. 38; at page 82 of my article, I wrote: “Authorship is a matter of historical truth. Knowledge about authorship not only identifies the contributions of particular individuals to national culture, but it also makes possible a more comprehensive understanding of the course of cultural development in a country. In addition, accurate attribution can assist efforts to repair or restore damaged cultural works in the most effective and appropriate manner….” And. in the following paragraphs: “The moral right of integrity allows an author to seek appropriate legal remedies when he feels that his work is threatened with damage. Since works of individual authorship make an important contribution to cultural heritage in most countries, the right of integrity ultimately contributes to the overall integrity of the cultural domain. Moreover, the concept of an integrity right has great flexibility. For example, proposals to extend the right of integrity beyond the protection of individual authors by adapting it to works of joint or anonymous authorship suggest that the potential of this right for the protection of cultural heritage can be greatly enhanced.”
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