As an IP lawyer, I am thinking up to what extend information related to intellectual property rights(IPR) becomes 'information' to be provided under the provisions of Right to Information Act,2005( herein after referred as RTI Act).
IPR is a right acquired by a person by proprietor ship or by the way of assignment of particular IP/s. Meaning thereby IP is private right of a person. As per Patent Act, patentee has such right up to 20 years, in Design Act this limitation is given up to fifteen years including renewal period of five years. In Copyright Act such IP right is up to entire life of author and 60 years after the death of author. In Trademarks Act, there is no such time limit for IPR.
It means that such IPR becomes a part of public and nobody can claim ownership after the completion of the above mentioned period for respective IPR and as such IPR becomes a part of public domain, anybody can use it as a public property.
I am writing herein below certain provisions from RTI Act,2005 for justifying the present article.
The purpose of RTI Act is to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto
What is right to information ?
The anecdote about what right to information is depicted in Section 2(j) of RTI Act
"right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to
"right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to
I) inspection of work, documents,
records;
|
II)taking notes, extracts or
certified copies of documents or records;
|
III)taking certified samples of
material;
|
IV)obtaining information in the form
of diskettes, floppies, tapes, video cassettes or in any other electronic
mode or through printouts where such information is stored in a computer or
in any other device;
|
'Information' means any material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force which is provided in definition clause of section 2 (f) of RTI Act,2005.
Section 9 of RTI Act says that without prejudice to the provisions of section 8, a Central Public Information Officer or a State Public Information Officer, as the case may be, may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.
and therefore for better enlightenment of the provision of section 9, the provision of section 8 is as under.
Section 8 of RTI Act is this :
| (1) |
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—
| |||
| (a) | information, disclosure of which would prejudicial affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; | |||
| (b) |
information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
| |||
| (c) | information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; | |||
| (d) | information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; | |||
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
| ||||
| (f) | information received in confidence from foreign Government; | |||
| (g) | information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; | |||
| (h) | information which would impede the process of investigation or apprehension or prosecution of offenders; | |||
| (i) | cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: | |||
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
| ||||
| (j) | information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: | |||
| Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. | ||||
| (2) |
Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.
| |||
| (3) | Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section: | |||
Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.
| ||||
Section 9 of the RTI Act is in respect of a discretionary power of Public Information Officer of Central or State as the case may be, to reject a request for providing information if such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.
To elaborate section 9 of RTI Act, it is requisite to deal with the following issues.
1) What Copyright is.
2) What an infringement of Copyright is.
3) Work in which Copyright subsists.
4) Subsisting in a person other than the State.
Let me briefly discuss them one by one herein after.
1) What Copyright is:
There is no specific definition given in the Copyright Act for what a copyright is, however, the meaning of the copyright is described in section 14 of the Act. Copyright means the exclusive right to do or authorize the doing of the act mentioned in this section (like reproduction of a work, performance of a work in public, making translation or adaptation of a work, issuing copies of a work) with regard to a work or any substantial part thereof. Such exclusive rights are subject to the other provisions of the Act.
2) What an infringement of Copyright is:
Copyright infringement means if a person imitates or copies substantial or material reproduction of the copyrighted work, such illegal activity of a person imitating is called infringement of copyright. Section 2 (m) of Copyright Act, 1957 is the definition of 'infringing copy'.
3) Work in which Copyright subsists:
Section 13 of the Copyright Act reveals that copyright subsists in original literary, dramatic, musical and artistic works. Copyright subsists in cinematographic films and sound recording provided that substantial part of the cinematograph film is not infringement of the copyright in any other work or a literary, dramatic or musical work in making of sound recording has not been infringed.
4) Subsisting in a person other than the State:
The copyright is subsisting in a person other than the State means the copyright must subsist either in a natural person or in a legal person which excludes from the definition of State mentioned in Article 12 of Constitution of India. The State includes the Government and Parliament and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
Section 17 of the Copyright Act speaks about the ownership of the copyright and rights of the owner. It says that the author of a work is the first owner of the copyright therein. Copyright subsists in a natural person (author) means the Doctrine of a 'contract for service' is applied and when the copyright subsists in legal person, other than the author, the Doctrine of 'contract of service' is applied. In Contract for Service, the author is doing some work under the employment, the employer is the first owner of the copyright work if no specific agreement is made between the author and the employer in respect of copyright work and in Contract of Service, the author is the first owner of the copyright work. A person can be an owner of the copyright by way of assignment or licence of copyright of existing work.
Having made the above mentioned understanding of Copyright and author of copyright, it transpires that the provisions of section 9 of the RTI Act is only applicable in the cases of where the Government is not the first owner of the copyright as per the provisions of Section 17 (d) of the Copyright Act, 1957. Section 9 is not applicable to the Government work wherein in absence of any agreement,Government is the first owner of the copyright. Section 9 of RTI Act excludes the provisions of Section 17 (d) of the Copyright Act. On one hand, as per this provision of Copyright Statute, the Government can be the first owner of the copyright work, and on other hand, as per the section 9 of RTI, if the request made for providing access of work, involving infringement of copyright, whose owner is Government, can be provided ??? Section 22 provides that where Government is the first owner of the copyright work, Copyright subsists until sixty years in that work. Thus, the words "other than the Sate" in section 9 of RTI Act indicate that copyright information where Government is first owner is provided and not in case of others. How would PIO decide that the request made by for providing access would involve an infringement of copyright as Registration of copyright is not Compulsory under the scheme of Copyright Act to claim ownership or to claim statutory protection. The causes for such denial of information by PIO are not mentioned in RTI Act.
It is pertaining to note that mere making request for accessing copyright work does not fall within the definition of section 2 (m) of the Copyright Act i.e.' infringing copy', nor does it come within the ambit of section 51 of the Copyright Act, i.e. infringement of copyright or nor such act is contravention of the provisions of either Copyright Act or of the definition of 'information' or of 'right to information' of RTI Act. Making request for providing the access of copyrighted work is not piracy, nor does it affect prejudicially the owner of the copyright. Moreover, registration of copyright is a part of public record of Copyright Office and any person is entitled to take inspection of copies of or make extracts from register of indexes on payment of prescribed fee as per section 47 of the Copyright Act. Then does section 9 of the RTI Act talk about unregistered copyrighted work ?, however, it is not mentioned in that section. This is opacity in RTI Act in respect of Copyright work. if the word 'access' mentioned in section 9, is related to computer only , even though , request for providing access cannot be denied, if as such information is taken from lawful possessor of it for bonafide intention to obtain information essential for operating computer programme.
Now coming to the section 8 (d) of RTI Act which is nothing but contrary to the provisions of IP Laws which are as under.
1) section 148 (documents open to public inspection) of the Trade marks Act, 1999. As per section 148(2), any person may, on making application to the Trade mark Registrar upon making payment of prescribed fee, obtain certified copy of any entry in the register or any document like notice of opposition , registration of trade mark, indexes and take inspection of them by way of Computer.
2) section 153 of the Patents Act,1970 (information relating to patent)
3) section 26 of the Designs Act, 2000 ( Inspection of and extracts from registers)
4) section 84 of the Protection of Plant Varieties and Farmers' Rights Act, 2001. (Document open to public inspection).
5) section 87 of the Semiconductor Integrated Circuits Layout- Design Act,2000. ( Document open to public inspection).
6) section 47 of the Copyright Act, 1957. ( Form and inspection of register).
In the case of Ms. Sakshi Mathur vs. Ministry of Health and Family in the year 2012 in Appeal No. CIC/SG/A/2011/003226 , Central Information Commission held that section 8(1))d) of the RTI Act is attracted only where disclosure of information would harm to the competitive position of a third party.Moreover, it is apparent that AIIMS is not a commercial organisation that competes with other organisations. Further, it is stated that question papers are prepared by experts for AIIMS. It does not appear that experts are in competitive position and therefore, respondent's contention that the information sought was exempt under section 8(1)(d) of the RTI Act is rejected.
In this case the Respondents argued that the question papers, which are prepared by subject experts for AIIMS are original literary works, copyright to which vests in AIIMS. Further as per section 57 of the Copyright Act, 1957, AIMS is stautorily required to protect the rights of the authors. Since copyright vests with AIIMS, it can legitimately restrict the circulation of question papers pr exclude others from doing it.
In the above mentioned case, the question is arisen who is the first author of that question papers whether experts or AIIMS. Whether those subject experts were employees of AIIMS or not. Experts must not be the employees of AIIMS and therefore, as per doctrine of ' contract for service' AIIMS is not either first author or owner. Section 57 says about author's special right, independently of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author has the right to claim the authorship of the literary work and not AIIMS and it is not clarified in the arguments of respondents that the terms of copyright have been started or not as per section 22 of the Copyright Act. Moreover, in respect of the facts of the case, section 57 is not attracted and therefore defense of exemption under section 8 (1)(d) of the RTI Act is not maintainable in that case.
While writing this blog, a question arises in my mind that whether, the Public Information Officers (PIO), First Appellate Authority of concerned Government Offices and Second Appellate Authority either State Information Commission or Central Information Commission, being competent Authorities, do they really read and acquire deep knowledge of IP Laws for their concerned with regard to RTI Act to justify that whether information should be provided or not as most of them are non legal persons who may never read any law ? If yes, then it is admirable but if not, then... plight of Government Offices would become more pitiable in the name of RTI and public interest is covered by the big black cloud. I have NOT found any silver line from this big black cloud namely RTI, however, A ray of hope is always there.
Chirag Bhatt
IP Lawyer
09824025041
1) What Copyright is:
There is no specific definition given in the Copyright Act for what a copyright is, however, the meaning of the copyright is described in section 14 of the Act. Copyright means the exclusive right to do or authorize the doing of the act mentioned in this section (like reproduction of a work, performance of a work in public, making translation or adaptation of a work, issuing copies of a work) with regard to a work or any substantial part thereof. Such exclusive rights are subject to the other provisions of the Act.
2) What an infringement of Copyright is:
Copyright infringement means if a person imitates or copies substantial or material reproduction of the copyrighted work, such illegal activity of a person imitating is called infringement of copyright. Section 2 (m) of Copyright Act, 1957 is the definition of 'infringing copy'.
3) Work in which Copyright subsists:
Section 13 of the Copyright Act reveals that copyright subsists in original literary, dramatic, musical and artistic works. Copyright subsists in cinematographic films and sound recording provided that substantial part of the cinematograph film is not infringement of the copyright in any other work or a literary, dramatic or musical work in making of sound recording has not been infringed.
4) Subsisting in a person other than the State:
The copyright is subsisting in a person other than the State means the copyright must subsist either in a natural person or in a legal person which excludes from the definition of State mentioned in Article 12 of Constitution of India. The State includes the Government and Parliament and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
Section 17 of the Copyright Act speaks about the ownership of the copyright and rights of the owner. It says that the author of a work is the first owner of the copyright therein. Copyright subsists in a natural person (author) means the Doctrine of a 'contract for service' is applied and when the copyright subsists in legal person, other than the author, the Doctrine of 'contract of service' is applied. In Contract for Service, the author is doing some work under the employment, the employer is the first owner of the copyright work if no specific agreement is made between the author and the employer in respect of copyright work and in Contract of Service, the author is the first owner of the copyright work. A person can be an owner of the copyright by way of assignment or licence of copyright of existing work.
Having made the above mentioned understanding of Copyright and author of copyright, it transpires that the provisions of section 9 of the RTI Act is only applicable in the cases of where the Government is not the first owner of the copyright as per the provisions of Section 17 (d) of the Copyright Act, 1957. Section 9 is not applicable to the Government work wherein in absence of any agreement,Government is the first owner of the copyright. Section 9 of RTI Act excludes the provisions of Section 17 (d) of the Copyright Act. On one hand, as per this provision of Copyright Statute, the Government can be the first owner of the copyright work, and on other hand, as per the section 9 of RTI, if the request made for providing access of work, involving infringement of copyright, whose owner is Government, can be provided ??? Section 22 provides that where Government is the first owner of the copyright work, Copyright subsists until sixty years in that work. Thus, the words "other than the Sate" in section 9 of RTI Act indicate that copyright information where Government is first owner is provided and not in case of others. How would PIO decide that the request made by for providing access would involve an infringement of copyright as Registration of copyright is not Compulsory under the scheme of Copyright Act to claim ownership or to claim statutory protection. The causes for such denial of information by PIO are not mentioned in RTI Act.
It is pertaining to note that mere making request for accessing copyright work does not fall within the definition of section 2 (m) of the Copyright Act i.e.' infringing copy', nor does it come within the ambit of section 51 of the Copyright Act, i.e. infringement of copyright or nor such act is contravention of the provisions of either Copyright Act or of the definition of 'information' or of 'right to information' of RTI Act. Making request for providing the access of copyrighted work is not piracy, nor does it affect prejudicially the owner of the copyright. Moreover, registration of copyright is a part of public record of Copyright Office and any person is entitled to take inspection of copies of or make extracts from register of indexes on payment of prescribed fee as per section 47 of the Copyright Act. Then does section 9 of the RTI Act talk about unregistered copyrighted work ?, however, it is not mentioned in that section. This is opacity in RTI Act in respect of Copyright work. if the word 'access' mentioned in section 9, is related to computer only , even though , request for providing access cannot be denied, if as such information is taken from lawful possessor of it for bonafide intention to obtain information essential for operating computer programme.
Now coming to the section 8 (d) of RTI Act which is nothing but contrary to the provisions of IP Laws which are as under.
1) section 148 (documents open to public inspection) of the Trade marks Act, 1999. As per section 148(2), any person may, on making application to the Trade mark Registrar upon making payment of prescribed fee, obtain certified copy of any entry in the register or any document like notice of opposition , registration of trade mark, indexes and take inspection of them by way of Computer.
2) section 153 of the Patents Act,1970 (information relating to patent)
3) section 26 of the Designs Act, 2000 ( Inspection of and extracts from registers)
4) section 84 of the Protection of Plant Varieties and Farmers' Rights Act, 2001. (Document open to public inspection).
5) section 87 of the Semiconductor Integrated Circuits Layout- Design Act,2000. ( Document open to public inspection).
6) section 47 of the Copyright Act, 1957. ( Form and inspection of register).
In the case of Ms. Sakshi Mathur vs. Ministry of Health and Family in the year 2012 in Appeal No. CIC/SG/A/2011/003226 , Central Information Commission held that section 8(1))d) of the RTI Act is attracted only where disclosure of information would harm to the competitive position of a third party.Moreover, it is apparent that AIIMS is not a commercial organisation that competes with other organisations. Further, it is stated that question papers are prepared by experts for AIIMS. It does not appear that experts are in competitive position and therefore, respondent's contention that the information sought was exempt under section 8(1)(d) of the RTI Act is rejected.
In this case the Respondents argued that the question papers, which are prepared by subject experts for AIIMS are original literary works, copyright to which vests in AIIMS. Further as per section 57 of the Copyright Act, 1957, AIMS is stautorily required to protect the rights of the authors. Since copyright vests with AIIMS, it can legitimately restrict the circulation of question papers pr exclude others from doing it.
In the above mentioned case, the question is arisen who is the first author of that question papers whether experts or AIIMS. Whether those subject experts were employees of AIIMS or not. Experts must not be the employees of AIIMS and therefore, as per doctrine of ' contract for service' AIIMS is not either first author or owner. Section 57 says about author's special right, independently of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author has the right to claim the authorship of the literary work and not AIIMS and it is not clarified in the arguments of respondents that the terms of copyright have been started or not as per section 22 of the Copyright Act. Moreover, in respect of the facts of the case, section 57 is not attracted and therefore defense of exemption under section 8 (1)(d) of the RTI Act is not maintainable in that case.
While writing this blog, a question arises in my mind that whether, the Public Information Officers (PIO), First Appellate Authority of concerned Government Offices and Second Appellate Authority either State Information Commission or Central Information Commission, being competent Authorities, do they really read and acquire deep knowledge of IP Laws for their concerned with regard to RTI Act to justify that whether information should be provided or not as most of them are non legal persons who may never read any law ? If yes, then it is admirable but if not, then... plight of Government Offices would become more pitiable in the name of RTI and public interest is covered by the big black cloud. I have NOT found any silver line from this big black cloud namely RTI, however, A ray of hope is always there.
Chirag Bhatt
IP Lawyer
09824025041
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