Dear Mr Mehta
I am grateful for your intervention. I agree that we should conduct ourselves with restraint and as per court decorum.
My *friend* Venkat (and I stress friend) has raised a series of issues to which I shall reply factually one by one
A) "In his love for maintaining the OSA regime, our moderator forgets the fact that we are a democracy and our legal regime is different from what it is in the West. There is no copyright for the State on documents produced by the State or its agencies in India, ordinarily. .. Unless the document in question is the nature of an expression or creation over which intellectual property can be claimed, no copyright claim is valid."
My analysis is based on relevant sections of the Indian Copyright Act 1957 which I am setting out
a) "2(k) "Government work" means a work which is made or published by or under the direction or control of-
(i) the Government or any department of the Government;
(ii) any Legislature in India;
(iii) any court, tribunal or other judicial authority in India;
2(y) "work" means any of the following works, namely:-
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a [sound recording];"
b) "13. Works in which copyright subsists.- (1) Subject to the provisions of this section and the other
provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is
to say,-
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) [sound recordings;]
17) Ownership of Copyright and the Rights of the Owner
(d) in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
[(dd) in the case of a work made or first published by or under the direction or control of any public undertaking, such public ndertaking shall, in the absence of any agreement to the contrary, be the
first owner of the copyright therein.
Explanation.- For the purposes of this clause and section 28A, "public undertaking" means-
(i) an undertaking owned or controlled by Government; or
(ii) a Government company as defined in section 617 of the Companies Act, 1956; or
(iii) a body corporate established by or under any Central, Provincial or State Act;]"
c) "28. Term of copyright in Government work.- In the case of Government work, where Government is the first owner of the copyright therein, copyright shall subsist until [Sixty] years from the
beginning of the calendar year next following the year in which the work is first published.
[28A. Term of copyright in works of public undertakings.- In the case of a work, where a public undertaking is the first owner of the copyright therein, copyright shall until [sixty] years from the
beginning of the calendar year next following the year in which the work is first published."
Section 52 goes on to list the specific situations which do NOT infringe copyright. For eg.
"52(q) the reproduction or publication of-
(i) any matter which has been published in any Official Gazette except an Act of a Legislature;
(ii) any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter;
(iii) the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government;
(iv) any judgement or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may be;
(r) the production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made thereunder-
(i) if no translation of such Act or rules or orders in that language has previously been produced or published by the Government; or
(ii) where a translation of such Act or rules or orders in that language has been produced or published by the Government, if the translation is not available for sale to the public:
Provided that such translation contains a statement at a prominent place to the effect that the translation has not been authorised or accepted as authentic by the Government;"
So now the dispute with Venkat essentially boils down to:-
"Are government produced documents ORIGINAL LITERARY WORKS in which copyright subsists"?
BTW, "literary" is deemed to mean anything "written" and must not be confused with "literature".
In this context (ie. works exempted from copyright by virtue of being in public domain by section 52 the Supreme Court held concerning its own judgements) in
CASE NO.: Appeal (civil) 6472 of 2004 PETITIONER: Eastern Book Company & Ors.
http://openarchive.in/newcases/30019.htm
"The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Indian Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments."
This affirms that CPR is the Rule for Govt works and Section 52 is the exception.
B) Now to Venkat's claim that section 9 eliminates CPR for government works. He words this in NGO-speak thus
" So the State's copyright also belongs to the people. This is why Section 9 says violation of the copyright of the State cannot be
a ground for refusing access to information under the RTI Act."
This is a classic case of logical fallacies and misinformation which NCPRI members indulge in (and why I am banned from all the other NCPRI affiliated Yahoo RTI groups - and now also the NCPRI affiliated CIC).
Section 8(1)(d) permits the PIO of a Public Authority to deny certain information (trade secrets, intellectual property) if the competitive position of any "third party" (which includes the public authority itself) would be affected by such disclosure.
Section 9 is an ADDITIONAL ground for the PIO to deny information where the copyright vests in someone other than the State. For Venkatesh to extrapolate from this that "violation of the copyright of the State cannot be a ground for refusing access under RTI Act access" is illogical.
Section 9 reads as follows:
"9 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."
Sarbajit
--- In rti_india@yahoogroups.com, Vijay Mehta <vmehtaudctbby@...> wrote:
>
>
> Venkat and Sarbajit you both are very important contributor to this forum and most of us read you with great interest.
>
> Sarbajit can try to be as moderate in language as Venkat and this is expected from every writer.
> court room decorum should be adopted by each one of us to maintain focus on the issues.
>
> Thanks,
>
> Vijay
>
> To: rti_india@yahoogroups.com
> From: sroy1947@...
> Date: Fri, 21 May 2010 05:42:45 +0000
> Subject: [rti_india] Re: Rules Governing republishing of Information acquired under RTI
>
> Dear Venkat
>
> 1) I am not participating in this (or any) debate as "Moderator". In fact I do not even claim to be "first among equals".
>
> 2) Due to shortage of time, I propose a civilised way to settle this debate finally - as follows.
>
> A) Venkatesh will apply to the CPIO Bureau of Indian Standards for the set of 6 (at last count) CDs containing all BIS Standards at the prescribed rate of s 50 per diskette. As per the RTI Act this should cost about Rs.300. It is undeniable that these standards are of larger public interest (so there should be no problem for Venkatesh to get around the BIS' standard defence of 8(1)(d), my favourite exemption). It may help Venkatesh to know that many P/As have independently uploaded individual BIS standards used by their employees to their own websites.
>
> B) Venkatesh will upload all the BIS standards (or an ISO thereof) to a publicly accessible website from where I (or you) can download these 6(or 6++) CDs AND inform BIS that he has done so - assuming all liabilities and consequences.
>
> C) If Venkatesh needs financing, I shall contribute (as a private citizen) the further fees and website charges.
>
> Sarbajit
>
> --- In rti_india@yahoogroups.com, "Venkatesh Nayak" <venkatesh@> wrote:
>
> >
>
> > Dear all,
>
> > In his love for maintaining the OSA regime, our moderator forgets the fact
>
> > that we are a democracy and our legal regime is different from what it is in
>
> > the West. There is no copyright for the State on documents produced by the
>
> > State or its agencies in India, ordinarily. Copyright is protected by the
>
> > Copyright Act whether registered initially or not. Unless the document in
>
> > question is the nature of an expression or creation over which intellectual
>
> > property can be claimed, no copyright claim is valid. Let us take an
>
> > exmaple: An FIR filed with the police is a public document and will sit in
>
> > some file or the other eventually. The final report of the police
>
> > investigation in a criminal case that is filed before a magistrat'es court
>
> > will ordinarily be in the form of a file. So if I get a copy of that file at
>
> > the rate of Rs. 2 per page which law prevents me from mass distributing it?
>
> >
>
> > And I would really like to know who has the copyright on these papers? will
>
> > it be the station house officer who wrote the complaint? or will it be the
>
> > person who lodged the complaint with the police? or will it be the accused
>
> > persons named in the FIR- because without their actions there would be
>
> > nothing to record as an FIR. or is copyright that of the victims of the
>
> > crime who are suffering? and which law prevents me from mass distributing
>
> > copies of the FIR or the charge sheet if I can afford it? In fact such
>
> > documents must be mass distributed in every instance where the police foul
>
> > up or goof up the investigation. This is necessary for kick starting the
>
> > battle of accountability of public officials.
>
> >
>
> > We need to read the OSA carefully. Please recognise OSA for what it is- it
>
> > is an anti-spying law, period. Of course it has been misused and we learnt
>
> > to abuse it from those who drafted that law (The Britishers who probably
>
> > forgot to Gazette it). the kind of interpretation that our moderator gives
>
> > to its provisions opens up more opportunities for abuse of its provisions.
>
> > According to OSA, unauthorised possession of government-held information
>
> > amongst others actions is an offence. Mere possession is not enough. please
>
> > read the sections carefully, almost everywhere possession and transmission
>
> > or alienation of such information must be proven to be prejudicial to the
>
> > safety or interests of the State. How can a citizen who obtains any
>
> > information under the RTI Act use it against the safety of the State? Such
>
> > information will not be given to him under the RTI Act in the first place as
>
> > we have strong protection in the form of exemptions listed in Section 8(1)
>
> > of the RTI Act.
>
> >
>
> > when the information is provided under the RTI Act, it is deemed to be
>
> > authorised possession. There is no law under which the State can prosecute a
>
> > citizen if he wishes to make money out of selling such information, to the
>
> > best of my knowledge. However this is also the question of ethics. No one
>
> > should be able to make commercial gain out of RTI. In developed countries,
>
> > some RTI laws and several assets disclosue laws place restrictions on
>
> > commercial re-use of such information. We do not have that protection in
>
> > India.
>
> >
>
> > As for priced publications, it depends upon what instances we are talking
>
> > about. If it is information in which intellectual property exists and can be
>
> > recognised in law then commercial reuse of this information without
>
> > permission from the rightsbearer is forbidden. But let us take the simplest
>
> > example of the bare texts of the law which private law book publishing
>
> > houses are publishing. This is information contained in a public document
>
> > which they are reprinting (and sometimes make several mistakes in the
>
> > reproduction) and making money out of it. The Constitution allows everybody
>
> > the right to publish verbatim even the reports of parliamentray proceedings,
>
> > provided they do not misreport. so in such cases where does the copyright
>
> > vest? Does it vest with all the officers who signed the documents that got
>
> > gazetted eventually? Did their section officers and clerks also have a
>
> > copyright on it? Do MPs have intellectual property claims on the things they
>
> > say in Parliament? In a democracy when we say 'State's copyright' where does
>
> > such right ultimately vest? What is the democratic State without its people?
>
> > or What is any kind of State without its people? When the Constitution
>
> > belongs to the people, everything that is done under its aegis belongs to
>
> > the people ultimately. So the State's copyright also belongs to the people.
>
> > This is why Section 9 says violation of the copyright of the State cannot be
>
> > a ground for refusing access to information under the RTI Act.
>
> >
>
> > There are some countries where officials can claim intellectual property
>
> > over their views tendered on file or on the intellectual contribution to
>
> > government policymaking. In India I am not in favour of having such a regime
>
> > of potection until the proportion of bureaucrats abiding by the fundamental
>
> > principle of any functional democracy, that is "rule of law" goes up to
>
> > 99.999999......%.
>
> >
>
> > Thanks
>
> > Venkat
>
No comments:
Post a Comment