Starting this year, aspirants of CAT have to sign a non-disclosure agreement (NDA) at the time of the online test. They face the prospect of criminal prosecution in the case of any breach of the Copyright Act and the IT Act. The organizers were even contemplating action against candidates for orally discussing the question paper outside the test centers. Ludicrous as it sounds, this is a disclaimer directed at preventing coaching institutions from distributing the questions for commercial purposes.
Recent judicial pronouncements on disclosure of question papers under the RTI Act, however, appear to dilute the threat of prosecution promised by the disclaimer. Ambiguity over the right to obtain contents of the test and the subsequent use of information sourced from RTI application is the subject matter of this post.
Are ‘Government works’ Covered under the RTI Act?
The Government owns copyrights over works made under the direction or control of the government, including by its employees in the course of employment. On the other hand, the disclosure of information under the RTI Act is mandatory, and denial thereof is an exception on very limited grounds specified under Section 8 and 9 of the Act. In the past, educational institutions have often turned away requests seeking copies of question papers and the answer keys. Protection of intellectual property over the information has been the justification against such disclosure. Dealing with a similar issue, the Supreme Court recently in ICAI v. Shaunak H. Sayta (Civil App. No. 7571 of 2011) and the CIC in Mangala Ram Jat v. Banaras Hindu University(CIC/OK/A/2008/00860/SG/0809) have ruled for disclosure of information. Below are the reasons cited for disclosure:
(a) Section 8(1)(d): Withholding information in ‘government works’ is permitted if its disclosure harms the competitive position of a third party. Other than for information sought before the test, this provision is inapplicable as disclosure disadvantages no candidate. Moreover, non-disclosure would not be legitimate even if the organizers desire to use the same questions for future examinations. This is so because the right to seek question papers trumps such considerations.
(b) Section 9: A PIO can reject any request if the disclosure of information infringes copyrights of any person other than the State. Building layouts with municipal authorities are the best example of information held by the government for which copyrights vests with a third party. The IIMs are the first owners over all the contributions to the question bank in light of the employer-employee relationship with the contributors. Subject to any contrary agreement, the IIMs cannot use an exception under this provision as they are an instrumentality of the state covered under the RTI Act.
(c) Public Interest: The preparation of a question bank involves a great amount of intellectual labor. Predictably, it has been argued that ‘public interest’ necessitates non-disclosure to guard against legitimate fears of commercial exploitation by private individuals. This, however, has been rejected by the CIC stating that public interest is not one of the exceptions to disclosure. Conversely, Section 8(2) of the RTI Act mandates disclosure of exempted information if ‘public interest’ so demands.
Recently, the CIC reiterated its position by directing AIIMS to disclose previous years’ question papers voluntarily. The Copyright law is blind to the amount of intellectual labor expended in a creating a work. Illustratively, a painting of Mona Lisa and an amateur photograph of the painting are given equal protection under the Copyright Act. Additionally, the non-obstante clause in Section 22 of the RTI Act overrides any other provision of any law inconsistent with it. In essence, no law or rule other than exemptions mentioned under Section 8 and 9 can be cited for non-disclosure. Therefore, the IIMs cannot exempt themselves from disclosing the questions and answer keys after the test.
- Right to Exploit Public Information?
Section 52(e) of the Copyright Act offers a fair use exception for reproduction of any literary works by any law in force. As a result, a citizen’s right to public information overpowers the IIMs’ right to reproduce the work. Barring this exception, however, all other rights are still intact with the IIMs. Therefore, the IIMs still enjoy exclusive commercial rights over the work. Therefore, no private entity can circulate questions even though obtained through an RTI.
The RTI Act encourages voluntary disclosure of information and therefore IIMs can commercially exploit the work by publishing a question bank. Such publication can be considered voluntary disclosure aimed at minimizing the use of the RTI Act under Section 4(2) for obtaining information. As per the Rule 5 of Right to Information (Regulation of Fee and Cost) Rules, 2005, the PIO could redirect the applicant to purchase the question bank at a price fixed for publication. In the case of an application seeking only a part of the question bank, the PIO is bound to provide photocopies of the publication at Rs. 2 per page.
Although the candidates are bound by the NDA not to disclose the information, the RTI Act is universal and does not require any relation to the applicant. That apart, coaching institutions would be protected from infringement actions for making use of questions for ‘educational purposes’ under Section 52 of the Copyright Act.
Since the quality of work is not the determinative factor for copyright protection, resorting to a claim under intellectual property law for inhibiting information would mean no information is in public domain. Therefore, a better option could be to voluntarily publish the question bank, which would have the dual effect of serving the public interest and at the same time exploiting their IP rights.