India: Intellectual Property Rights vs Right To Information

Research contributions by Ms. Rushali Srivastava, third year student of Institute of Law, Nirma University, Ahmedabad

For the proper functioning of a democratic country, it is imperative that information pertaining to the government is accessible to citizens. This not only fosters transparency but also makes the government officials accountable for their actions. Further, an informed citizenry serves as a deterrent, dissuading government officials from indulging in corrupt activities.  The erstwhile Freedom of Information Act, 2002, criticized heavily for providing too many exemptions under the garb of national security, failed to achieve the desired results. Thus, to overcome the deficiencies in the former Act, Right to Information Act was enacted by the Legislature. While that may be so, the Legislature has also taken into account that certain information cannot be disclosed.  For instance, information involving commercial confidence, intellectual property, or trade secrets is exempted from disclosure, if the same would hurt the commercial interest of a third party. However, if the competent authority is of the view that public interest demands the disclosure of such information, then the same shall be disclosed^[i]

In Ferani Hotels Pvt. Ltd. v. State Information Commissioner and Ors.,^[ii] an interesting interplay between intellectual property laws and right to information unfolded. The facts of this case date back to 1995 when Mr. Nusli Neville Wadia entered into a contract with Ferani Hotels for the development of real estate. This agreement was terminated owing to differences between the parties. A right to information application under Section 6(1) of Right to Information Act was filed by Mr. Wadia, seeking information concerning certified documents of property card, all layouts, developmental plans, etc. This was objected by Ferani Hotels, who argued that the information sought by Mr. Wadia did not serve any public or social interest but was for his own private interest. It was also argued that a copyright subsisted in the developmental plans as furnished by Ferani Hotels to the Municipal Corporation and divulgence of the same would amount to copyright infringement. Further, it was also contended that information as sought were trade secrets and since Mr. Wadia was their competitor, the information should not be made available to him.

Accepting the above arguments, the application was disallowed by the Public Information Officer. An appeal was filed by Mr. Wadia against this decision, which was partly allowed; while the request for copy of the property card was allowed, the other documents were not made available. A second appeal to State Information Commissioner was filed by Mr. Wadia wherein the State Information Commissioner allowed the appeal and gave directions to Public Information officer to provide Mr. Wadia with all the information sought. State Information Commissioner took the view that since the development plans related to public, public interest demanded that Mr. Wadia be furnished with information sought. A writ petition was filed against this decision in Bombay High Court by Ferani Hotels.

The High Court upheld the decision taken by State Information Commissioner. The Court held that once the developmental plans were submitted and sanctioned, the same became part of the public record and could no longer said to be in the nature of trade or commercial secrets. The Court held that such information, if not disclosed, would defeat the purpose of Right to Information Act

While expounding the difference between confidential Information and copyright, the Court stated that they are on the opposing sides of the IP spectrum and that they cannot be equated with each other. Keeping this in view, the Court held that the disclosure of developmental plans by itself would not amount to copyright infringement. According to Section 9 of the Right to Information Act, information may not be disclosed if the disclosure would involve a copyright infringement. However, the Court held that the developmental plans are of such nature that even if disclosed it would not give way to copyright infringement. Moreover, Section 52 (f) of the Copyright Act also states that reproduction of a work in accordance with any law for the time being in force would not amount to copyright infringement.

The Legislature has tried to maintain a balance between the intellectual property rights and the objective of propagating transparency and accountability in government functioning. Neither of two can be allowed to supress the other as this will end up being counterproductive and opposite to Legislature's intent. With this in mind the judiciary has taken it upon itself to interpret statutory provisions in such a way so as to ensure that equilibrium is maintained between the two. It will be interesting to see how these two domains intersect in the future. 

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