India: Copyright And The Right To Information

Last Updated: 30 November 2018
Article by Sumathi Chandrashekaran

Can a request for information under the Right to Information Act, 2005 ("RTI Act") be denied on grounds of being the copyright of a third party? This was one of the questions that a Two Judge Bench of the Supreme Court of India recently dealt with. The case related to the issue of disclosure under the RTI Act, where a person sought information regarding the plans submitted to public authorities by a real estate developer.


The origins of the suit, Ferani Hotels Pvt. Ltd. vs The State Information Commission, Greater Mumbai (Civil Appeal Nos.9064-9065 of 2018, decision dated 27 September 2018, Supreme Court of India), lie in a private commercial dispute between a real estate developer, Ferani Hotels, and Mr Nusli Neville Wadia (see).

In brief, Mr Wadia administered certain plots of land as the owner of that land, and granted Ferani Hotels the authority to develop 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 information 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 (and amendments), submitted by Ferani Hotels, its divisions or architect.

The request 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. The latter ground was based on two arguments put forward by Ferani Hotels: firstly, that the information-seeker was a business competitor and the disclosure of the information would harm and injure its competitive position, as well as its intellectual property rights; secondly, that all rights in respect of the plans, designs, drawings, etc., including intellectual property rights and in particular copyright, were reserved and vested exclusively with the developer.

After winding its way through the corridors of the information commission architecture set up under the RTI Act, the suit found itself before the Supreme Court. The Court, in this order, dealt with multiple questions relating to the RTI application, such as what constitutes public interest, but this note is restricted to understanding the court's views on copyright and the RTI Act.

The RTI Act and copyright

It is useful to discuss some relevant provisions of the law at this stage. The RTI Act was created in 2005 to increase the accountability of government authorities towards the public by facilitating greater and more effective access to information. 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 as long as it is part of the public record of a public authority. The Court additionally observed that even private documents submitted to public authorities may, under certain situations, form part of public record.

The right to information is subject to certain restrictions contained in the law. For example, section 8(1)(d) allows for information to be denied if it includes "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". Similarly, Section 9 allows a competent authority to "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."

In the present case, the information sought for were, in fact, plans relating to the property in question. These plans are ordinarily required to be submitted by any person proposing to construct on a property, to the Commissioner of the Corporation. The general principle, which the Court has reiterated in multiple pronouncements, is that the "fate of [the] purchase of land development and investments is a matter of public knowledge and debate."

To highlight this principle, the Court made reference to provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, which empower purchasers of flats (which are being built by a developer) to obtain full information of the sanctioned plans. (This law, although relevant for this case, has since been repealed by Real Estate (Regulation and Development) Act, 2016, which retains the same spirit of positive information disclosure). The Court made two pertinent observations in this context: firstly, that this right to obtain information about sanctioned building plans should not be restricted to flat-buyers, but should also be available to persons who administer the land as owner, and grant authority for its development. Secondly, the Court noted that the disclosure of plans, which are already required to be in public domain under law, cannot possibly be matters of commercial confidence or trade secrets.

The Court's conclusions

On the issue of intellectual property and copyright, the Court noted that even though the preparation of the plan and its designs may give rise to the copyright in favour of a particular person, the disclosure of that work would not amount to an infringement. Towards this, it cited Section 52(1)(f) of the Copyright Act, 1957, which specifically provides that there would be no such infringement if there is reproduction of any work in a certified copy made or supplied in accordance with any law for the time being in force. This is what was sought for in the present case.

The other relevant observation pertained to the implications of the overriding effect clause contained in Section 22 of the RTI Act, which provides for an overriding effect with a notwithstanding clause with regard to any inconsistency with any other Act. The Court clarified that this would not imply that a disclosure permissible under the Copyright Act, 1957 is taken away under the provisions of the RTI Act, but rather, if a disclosure is prescribed under any other Act, the provisions of the RTI Act would have an overriding effect.

A legal misadventure

While tackling this case, the Court also made plain-spoken observations about the nature of the dispute, calling it "a legal misadventure", emerging "clearly [from] the private dispute, rather than any objective consideration qua the issue of disclosure of information", and where "the issue in question was .... really innocuous". Costs of Rs 2.50 lakhs were imposed on the appellant, Ferani Hotels, payable to the information-seeker, although the court also noted that these were hardly the actual expenses!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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