Arbitration cannot be objected in the middle, says SC

A bench of Justice Chelameswar and S.A. Bobde of the Apex Court in M/s MSP Infrastructure Ltd v. M P Road Development Corporation Ltd. stated that a party to the arbitration proceedings cannot be objected regarding jurisdiction of the tribunal midway. Issue arose in this appeal was whether a party to an arbitration proceeding may be permitted to raise objections under Section 34 of the Arbitration and Conciliation Act, 1996 with regard to the jurisdiction of the Arbitral Tribunal after the stage of submission of the written statement.

According to the Appellant, the Tribunal under the Arbitration Act, 1996 was fully empowered to enter into and decide the dispute submitted to it, since the dispute was referred in pursuance of an arbitration clause contained in the Concession Agreement entered between the Parties to this appeal. Appellant further argued that the aforesaid clause covers any dispute which is not resolved amicably and is intended to cover the present dispute which arises under the contract formed and concluded by the agreement which contains this very arbitration clause.

Section 16 undoubtedly empowers the Tribunal to rule on its own jurisdiction and any objections to it must be raised not later than the submission of the statement of defence. However, objections to the jurisdiction of a Tribunal may be of several kinds as is well-known, and Section 16 does not cover them all. Where the objection was of such a nature that it would go to the competence of the Arbitral Tribunal to deal with the subject matter of arbitration itself and the consequence would be the nullity of the award, such objection may be raised even at the hearing of the petition under Section 34 of the Act.

However, Court observed that, there is nothing to warrant the inference that all objections to the jurisdiction of the Tribunal cannot be raised under Section 16 and that the Tribunal does not have power to rule on its own jurisdiction. Secondly, Parliament has employed a different phraseology in Clause (b) of Section 34. That phraseology is “the subject matter of the dispute is not capable of settlement by arbitration.” This phrase does not necessarily refer to an objection to ‘jurisdiction’ as the term is well known.

Court even considered its earlier decision in Booz Allen and Hamilton Inc. v. SBI Home Finance Limited and Ors (([2011] 5 SCC 532)), that, “Even if there is an arbitration agreement between the parties, and even if the dispute is covered by the arbitration agreement, the court where the civil suit is pending, will refuse an application u/s.8, to refer the parties to arbitration, if the subject matter of the suit is capable of adjudication only by a public forum or the relief claimed can only be granted by a special court or Tribunal”.

Author’s Special Rights

Author: Abhinav Gaur, Research Associate

It was in the eighteenth century that a view that an author of the work shall have an exclusive copyright in his work which he has come up with using his own intelligence and creativity. Since, before the eighteenth century the publishers considered themselves under a major risk as they acquired work from the author and did its printing and publishing. This was time which led to a huge conflict on the concept of ownership and authorship of a work ((W.R. Cornish, “Intellectual Property: Patents, Copyright, Trade Marks and Allied Marks,” (Delhi: Universal Law Publishing Co. Pvt. Ltd., 2003), 2nd Indian Reprint, at 297.)). Then statutory rights were made available to the author of the work to protect his rights and creations, vested in his work.

In India, the copyright in differentworks has been given to its creators bylaw governing the copyright. After independence of India, the Copyright Act of 1957 confers copyright or an ‘exclusive right’ to the author of the work. The Act explicitly provides that no copyright exists in any work, other than provided in the Copyright Act ((Section 16 of the Copyright Act, 1957)).

Copyright is a very distinct and unique kind of intellectual property right as it is produced out of a human intellect and comes into existence as soon as it is created. The copyright law does not require that the intellectual investment in a work must necessarily be absolutely original; rather, the standard of originality required for copyright is low ((Jagdish Prasad Gupta v. Parmeshwar Prasad Singh, AIR 1966 Pat. 1965.)).” The primary function of copyright law is to protect the fruits of man’s work, labor, skill or test from annexation by the other people ((Sulamanglam R. Jayalakshmi v. Meta Musical (AIR 2000 Mad. 454).)). There can be no copyright in an idea, subject matter, themes, plot or historical facts ((R. G. Anand v. Delux Films (AIR 1978 SC 1613).)), but it’s the expression which is of greater value.

AUTHOR’S SPECIAL RIGHTS

It is not just the economic safeguard against a property or material that is important for any author but also such person’s own moral rights and reputation in society that is more important than any materialistic consideration.

Justice Nandrajog has very beautifully said in a very prominent judgment ((Amar NathSehgalvs Union Of India (Uoi) And Anr., 2005 (30) PTC 253 Del)), “In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral Rights of the author are the soul of his works. The author has a right to preserve, protect and nurture his creations through his moral rights”.

Author’s special rights ((P.P. Prabhakarvs Secretary, Government Of India, 1986 (2) Crimes 570, 29 (1986) DLT 248))are also known as moral rights; these rights protect the morals and repute of an author. Section 57 of the Copyright Act, 1957 provides for what are termed as “Author’s Special Rights. Established on Article 6bis of the Berne Convention, moral rights have two key elements:

(1) Right to claim authorship of the work (sometimes referred to as Rights of Attribution/Paternity Rights), and;

(2) Right against distortion, modification or mutilation of one’s work if such distortion or mutilation would be prejudicial to the author’s honor or reputation (or “Integrity Rights”).

The author of the work has the right to preserve and protect his moral rights. The protection guaranteed by the moral rights, yet, is different from the economic rights. Whereas the economic rights protect the economic interests of theauthor by preventing others from exploiting the work without the consent of the author, the moral rights focus on the protection of the author’s personality and repute in the society he stays in.

Section 57 of the Copyright Act strongly adheres to this observation and protects the moral rights along with the right of the author to claim authorship in the work, or in other words the right of paternity asAuthor’s Special Rights. As amended by the Copyright (Amendment) Act, 2012, Section 57 gives the author of the work a right to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work.

FEW JUDICIAL PRONOUNCEMENTS

In the case of Wiley Eastern Ltd.v. Indian Institute of Management ((1995 PTR 53 (Del.).)), the Hon’ble court held that the words “Action prejudicial to his honor orreputation” under Section 57 (1) (b) refers only to the author of the work and not to any other person related with the work in any manner. Section 57 is a special provision for the protection of the special rights of the author. The object of the section is to put the intellectual property on higher footing than the normal objects of copyright. Further, that the language used in Section 57 is of widest amplitude and cannot be restricted to the literary’ expression only and also covers other expressions such as visual and audio manifestations, as was held in the case of Mannu Bhandariv. Kala Vikas Pictures Pvt. Ltd ((AIR 1987Del. 13)).

Also, in the case of Amar Nath Sehgalv. Union of India ((2005 (30) PTC 253 Del))the issue of moral rights was substantially discussed. In this case, the plaintiff/author assigned his copyright in a bronze mural, to the Union of India. The mural was placed in Vigyan Bhavan, but was later pulled down and dumped. The author, Amar Nath Sehgal, sued for violation of his moral rights. The court observed: “These [moral] rights are independent of the author’s copyright. They exist even after the assignment of the copyright, either wholly or partially.”

Furthermore, the case of Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr ((AIR 1987Del. 13))elaborated upon scope of Section 57 and observed that “Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasized by the fact that the remedies of a restraint order or damages can be claimed “even after the assignment either wholly or partially of the said copyright…” Section 57 thus clearly overrides the terms of the Contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of Section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57. The Contract of Assignment will have to be so construed as to be consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent with the provisions of Section 57.”