This article is written by Dhruv Shah, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.

‘I can file an RTI application for almost anything on anyone!’ exclaimed a big-time RTI activist and social worker. Alas, had he searched on the internet or read any case laws he would have known that there are some grounds for rejection of RTI application under the Right to Information Act, 2005. Well, there are some grounds on which the application for information can be denied: Whether the organization inquisition is a private institution, What information is asked has to exist or the information falls in the exemptions specified in the act. The information should be sought appropriately. ‘Why did I still not receive my Aadhar card’? Is not asking for information, but ‘I want to know the current status or progress of my application for an Aadhar card’ is asking for information in a prescribed manner. This ensures a quick and proper reply from the concerned authorities. Now there are several topics under which RTI application can be rejected, but we shall be dealing with a RTI application rejection based on the account of copyright laws in India.

Can RTI application be rejected on account of copyright law?

Yes. Let us initially discuss the relevant laws associated with this answer to our question at this level and then shed some light on the complete topic. The Right to Information Act 2005 has always been in current trends for a long time. The fundamental aim is not only to provide information to all the citizens of India from any public government authority regarding the administration, operation, and decisions but also to keep up with the transparency and accountability within the operating of public authorities. Any citizen of India is empowered under this act to call for information from a public authority, be it a body of Government within 30 days. Section 6(2) of the RTI Act says that an applicant does not have to provide any reasons for requesting the information. In other words, anyone can obtain the information in question as long as it is an element of the general public record of a public authority. The Court, in addition, ascertained that even non-public and private documents submitted to public authorities may, under certain situations, form a significant part of the public record.

The right to information is subject to certain restrictions contained in the law. When the question is of the information causing severe harm to the specific, necessary community interests then it is kept confidential. These provisions square the measure normally referred to as “exemption provisions”. Section 8 can be considered one of the most essential aspects of Right to Information Act 2005 as it talks about nine grounds under which the data can be excluded from revelation.

Section 8 of the act talks about the exemption from revealing information. It could be:

1. The information which would impact the sovereignty and integrity of India,
2. The information which under any court of law has been restricted to be published,
3. The information which causes a violation of  privilege of parliament,
4. Information including commercial confidence, trade secrets, and intellectual property.

And many more. We are more interested in Section 8(d) of the Act. it talks about the issue on hand that if it is related to the commercialized confidence, trade secrets, or intellectual property, as when such information is disclosed, it can damage the competitive situation of the third party. It talks about information including commercial confidence, trade secrets, or intellectual property, the revelation of which would hurt the competitive position of a third party unless the competent authority is content that larger public interest allows the disclosure of such information necessary. The information related to the third party impacts the right to privacy of the people, which is called the Fundamental right of the Constitution, and harming the fundamental right of the people is an offense under the Constitution of India. 

For example, a businessman plans on selling confectionery and bakery items mixed with different and interesting flavors. If any rival party files an RTI for the information of the key ingredients or business plan then it would lead to the closure of the business for our businessman just after starting it. Disclosure of trade secrets leads to a loss for the concerned party. But under this clause, if the competent government agency is of the opinion that even after disclosing the information the vast interests of the public at large are satisfied, then the information can be disclosed. Although there are several landmark case judgments on this there is a particular one that sets a new benchmark for exemptions under the RTI act.

Ferani Hotels Pvt. Ltd. vs The State Information Commission

Issue

The origins of the case in question, Ferani Hotels Pvt. Ltd. v. The State Information Commission lie in a private commercial dispute between a real estate developer, Ferani Hotels, and Mr. Nusli Neville Wadia. In brief, Mr. Wadia dispensed certain plots of land as the owner of that land and authorized Ferani Hotels to acquire the land through a Power of Attorney. It came to pass that Mr. Wadia wanted information about the building plans. When the developer failed to provide the data through other means, Mr. Wadia applied to the Public Information Officer (“PIO”), Municipal Corporation of Greater Mumbai, for this information, which included certified copies of plans, layouts, development plans submitted by Ferani Hotels or their architects.

The application for this information was declined on various grounds by the PIO, including that no public interest had been demonstrated in seeking this information, and that it was the copyright of Ferani Hotels. In the duration of the suit proceedings, Mr. Wadia’s attorneys sought the production of files detailing the development of the real estate, but Ferani’s attorneys disagreed to comply. In response, Mr. Wadia filed an RTI application to the Bombay Municipal Corporation requesting certified copies of the property card, construction, and project plans submitted by Ferani or its architects for approval from the Corporation. 

Rules

Since the request demanded third party data, the PIO notified Ferani under Section 11 of the Act. The latter responded with a lengthy list of objections, leading to the application’s dismissal. Following a partly successful First Appeal, Mr. Wadia appealed before the State Information Commissioner, who directed the Corporation to fulfil the request in its entirety. In reply to this order, Ferani filed a Writ Petition before the Bombay HC.

The Petitioner’s principal argument was that the information sought to be revealed was exempted under Section 8 of the Act. Specifically, the Petitioner pleaded that it was protected under Section 8(1)(d) since development plans were trade secrets and their disclosure to Mr. Wadia (a business rival) would hinder its competitive edge in the marketplace. The Court made two pertinent observations in this case: firstly, that this right to obtain information about sanctioned construction plans should not be restricted to flat-buyers, but should also be available to individuals who administer the land as the owner, and grant authority for its development. Secondly, the Court noted that the disclosure of plans, which are already necessary to be in the public domain under law, cannot possibly be matters of commercial confidence or trade secrets. 

Analysis

On the topic of intellectual property and copyright, the Court noted that even though the planning of the plan and its designs may give a hike to the copyright in favor of a particular person, the revelation of that work would not add up to an infringement. The above case study helps us to understand the law pertaining to copyright is to protect the intellectual property of an individual or company even from the prying RTI application from their rivals. But the information that is made public or duly required to be submitted to the government makes it a public record. Public records should be made available to all the citizens of the society irrespective of the motive or business is undertaken by them.

The Ferani Hotels case is one of the few gems as the case laws related to the discussion are quite rare. Very few cases throw light upon the issue of to what expanse can an RTI application ask for information when it comes to copyright laws. While the Supreme Court has addressed the question of personal information (Girish Ramachandra Deshpande v. CIC, RK Jain v. Union of India, etc.), the only case which was even close enough to discuss the significance of the RTI Act on IP was ICAI v. Shaunak Satya, in which the court set aside copyright concerns on the ground that The Institute of Chartered Accountants of India was a statutory body, and therefore the revealing of questions and model answers to CA examinations could not be prohibited on the ground that it would comprise copyright infringement. Another significant case was of Thalappalam Ser.Coop.Bank Ltd. v. State Of Kerala.

Case Summary and Outcome

In this case, The Supreme Court was of the opinion that a co-operative society registered under the Kerala Co-operative Societies Act was under no obligation under the Right to Information (RTI) Act to provide the data enquired by any citizen and that it did not fall within the definition of “public authority” under the RTI Act. The Applicant had sought information relating to the bank accounts of some members of the Mulloor Rural Co-operative Society Ltd. The Court considered that not only co-operative societies did not meet the verge of control by the government required under the definition of “the State” in Article 12 of the Constitution nor were “substantially financed” by the government so as to be qualified as a “public authority” under the RTI Act. In order to create a proper balance between the Applicant’s right to disclosure against the privacy rights of the Society’s members, the Court reasoned that the information was private and did not relate to any public activity or concern, so the public authority or officer was not obliged to conform with the request.

Global Perspective

Now that Indian rules have been discussed two prominent countries have been singing a similar tune when it comes to freedom of information and copyright laws.

Germany: Section 6 of the Freedom of Information Act talks about the Protection of intellectual property and business or trade secrets: No entitlement to accessibility to data shall apply where such access violates the protection of intellectual property. Access to business or trade secrets may only be granted subject to the subject’s assent whose date has been asked for.

The United States of America: The U.S. Copyright Office is dependent on the Freedom of Information Act (FOIA), which requires agencies to make their records available to the public either proactively or in response to a request, subject to certain precondition and exceptions. To further simplify the citizens can request any record that the Office creates and receive and that is under Office control at the time of the request and has not proactively disclosed on the official government website copyright.gov. But there are exceptions to the kinds of records covered under FOIA which declare that The Copyright Office is part of the Library of Congress but cannot produce Library records under FOIA or the Privacy Act. here the important aspect is that Library records related to the Copyright Office include employment records, financial records, and Library collection records.

Conclusion

While solving the Ferani Hotels case, the Court also made plain-spoken observations about the nature of the dispute, calling it “a legal misadventure” and it is aptly described as such. If the information is personal, it must be seen whether the information came to the public authority as a consequence of public activity. By their very nature, the values sought to be protected by IP law seem to be at odds with those sought to be protected by the RTI Act. Generally, most of the information in public records arises from public activity. If there is no possibility of competition, the exemption cannot be claimed under this clause. If the information is required to be submitted for the interest of the public then it should be accessible to the public. A balance should be created between crossing the lines of privacy when it comes to intellectual property as it is considered one of the most valuable assets of any organization. There always exists some very sensitive information, which should be kept secret so that no damage can be caused to any parties. 

References

1. https://cic.gov.in/sites/default/files/Disclosure%20vs.%20Non%20Disclosure%20of%20Information%20Under%20RTI%20Act%2C%202005%20by%20Nikhil%20Goel.pdf
2. https://rti.gov.in/rti-act.pdf
3. https://copyright.gov.in/Documents/CopyrightRules1957.pdf
4. https://rtionline.gov.in/faq.php
5. https://shodhganga.inflibnet.ac.in/bitstream/10603/147275/11/11_%20chapter-7.pdf
6. https://www.righttoinformation.wiki/explanations/grounds-for-rejection
7. https://www.mondaq.com/india/trade-secrets/759832/copyright-and-the-right-to-information#:~:text=The%20right%20to%20information%20is,restrictions%20contained%20in%20the%20law.&text=Similarly%2C%20Section%209%20allows%20a,person%20other%20than%20the%20State.%22
8. https://spicyip.com/2015/11/trade-secrets-and-the-right-to-information-thoughts-on-ferani-hotels-v-state-information-commissioner-part-i.html
9. https://lawstreet.co/judiciary/developers-should-mandatorily-display-sanction-plan-of-project-at-the-site-says-sc-read-judgment/
10. https://www.obhanandassociates.com/blog/copyright-and-the-right-to-information/
11. https://globalfreedomofexpression.columbia.edu/cases/thalappalam-ser-coop-bank-ltd-v-state-kerala/
12. http://www.gesetze-im-internet.de/englisch_ifg/englisch_ifg.html#p0021
13. https://www.copyright.gov/foia/#:~:text=The%20U.S.%20Copyright%20Office%20is,to%20certain%20conditions%20and%20exceptions
14. https://en.wikipedia.org/wiki/Freedom_of_information_laws_by_country#

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