A few months ago, we had blogged about the Department of Industrial Policy and Promotion (DIPP) copying large portions of its article on the application of FRAND terms to the licensing of Standard Essential Patents from an article published by Jones Day in 2013 on the same subject.
Taking cognizance of Dr. Arul Scaria’s plagiarism allegations, the DIPP subsequently revised the article and cited the sources on which the article was based.
This incident would not be a huge cause of concern if it were an aberration. However, if recent news reports are any indication, the Government doesn’t seem to have taken any meaningful measures to overhaul the culture of plagiarism of which the DIPP saga was but an extreme manifestation.
3 recent examples further reinforce the need for the government, at the central as well as state level, to unequivocally recognize the proposition that plagiarism in any form or shape cannot be tolerated.
First, the Telangana Government has accused the Andhra Pradesh Government of copying the web design and data formats used by the former in its ease of doing business report submitted to the Centre. As the Hindu notes, the DIPP has formulated a 340-point Business Reform Action Plan which each state is required to report on. The responses by the states carry great significance because they are the key determinants for ascertaining a state’s ranking in the ease of doing business index.
Noting that the practices adopted by Andhra Pradesh are “not exactly fair and transparent,” the Telangana Minister for Industries and IT stated in his letter to Nirmala Sitharaman, the Union Minister for Commerce and Industry, that Andhra Pradesh’ illegal conduct is best evidenced by the fact that it has even copied the reference number assigned by the High Court to the documents submitted by the former.
Further, the documents submitted by the AP Government, contends Telangana, contain the same spelling mistakes that are found in the documents submitted by the latter – one of the surest signs of blatant copying.
Second, more than 75% of the content of the Ministry of Environment and Forests’ Environmental Supplemental Plan has been copied from the Supplemental Environmental Projects Policy released by the U.S. in March 2015, according to the Indian Express.
As the report notes, as many as 2900 words of the 3850-word long document have been copied from the U.S. policy.
The plan is designed to enable project proponents who commenced their projects without acquiring prior environmental clearance under the 2006 Environmental Impact Assessment Notification to remediate the damage caused by the project and avert negative legal consequences.
Even though the Ministry contends that it has merely borrowed the idea of such a plan from the U.S. and not the language used in the American policy, a perusal of the two policies puts the matter beyond any pale of doubt.
For instance, the introduction of the American policy reads as follows: “Supplemental Environmental Project (SEP) is an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action.”
Similarly, the Indian policy begins in the following way: “An Environmental Supplemental Plan (ESP) is an environmentally beneficial project or activity that is not required by law, but that an alleged violator of Environmental Impact Assessment Notification, 2006 agrees to undertake as part of the process of environmental clearance.”
Further, Clause (II D) of the US policy states: “SEPs provide defendants with an opportunity to develop and demonstrate new technologies that may prove more protective of human health and the environment than existing processes and procedures.”
Clause (4 iii) of its Indian counterpart states: “Innovative Technology: Environmental Supplemental Plan will provide the proponent and the Expert Group with an opportunity to develop and demonstrate new technologies that may prove more protective of human health and the environment than existing processes and procedures.”
Another example would be the following: US (IV A III): The project must demonstrate that it is designed to reduce:
a. The likelihood that similar violations will occur in the future;
b. The adverse impact to public health and/or the environment to which the violation at issue contributes; or,
c. The overall risk to public health and/or the environment potentially affected by the violation at issue.
India (5): The project must demonstrate that it is designed to remediate the ecological damage caused due to violations and it will reduce,
a. The likelihood that similar violations will occur in the future;
b. The adverse impact to public health and the environment to which the violation at issue contributes;
c. The overall risk to public health and the environment potentially affected by the violation at issue.
While the very act of copying large portions of a foreign government’s policy document is legally and morally reprehensible, what makes this misconduct all the more condemnable is the fact that this policy offers violators of the 2006 notification a pathway to circumvent the law and wreak ecological damage without having to suffer any consequences.
In light of the fact that India’s environmental laws envisage harsh criminal punishments in contradistinction to civil penalties envisaged by their American counterparts for any violation, is it too much to expect the Ministry of Environment to tailor a policy that is suited to address India’s sui generis needs and is in consonance with her environmental laws?
If these acts of plagiarism weren’t enough, in the third reported instance of plagiarism by a government/statutory body this week, the TRAI is believed to have borrowed the icon for its official app from third parties.
Cumulatively viewed, these events bring into sharp focus the need for the Government to enact a robust anti-plagiarism code at the earliest. These events also force us to interrogate the manner in which the malaise of plagiarism has called into question the intellectual honesty and integrity of a large array of individuals and institutions in India, from academicians to IP lawyers themselves.
While acts of plagiarism can amount to copyright infringement in a majority of cases, in that they violate the rights of the copyright owner of the work whose content is copied, it is imperative that government authorities create a separate code for dealing with plagiarism. Just as the UGC has begun working in earnest on formulating a law to combat academic plagiarism, the Government would do well to put in place an appropriate legal structure and training mechanism to nip this practice, which has significantly eroded the credibility of a large array of government bodies, in the bud.
Finally, as Mathews has noted, building further layers of regulations, in the form of Austinian sanctions, is not going to be sufficient or adequate for combating plagiarism; we must attach equal emphasis to imparting training in ethics to academicians and government functionaries.
