Government Babu Claiming Copyright??

A very Happy New Year to all of you. Thought I would start 2006 with a news item that may bring a few laughs. The Economic Times asks:

Should a government servant be awarded a copyright for drafting a document in the regular course of work and can he then charge a fee every time that document is used?

Apparently, “the new Model Concession Agreement (MCA) for public-private partnership projects in the road sector has created history as well as scandal by being the first government document to carry the copyright of its author, Rajasthan cadre IAS officer Gajendra Haldea.

The copyright would have entitled Haldea to a royalty fee of 1% on every contract signed, but this demand was opposed and finally shot down. However, government sources say this waiver is only for central government contracts, which means that if a state government or any other body uses Haldea’s MCA, it will have to pay him a royalty fee.”

Given India’s recent focus on building a robust IP culture, the fact that government babus are now creating and claiming IP rights is a welcome trend. It seems stupid though to suggest that copyright would vest with the author (Haldea). In most cases (i.e. absent an agreement to the contrary), copyright vests in the employer–i.e. the government. I can’t see how Haldea could claim to have created this outside the scope of employment with the government (perhaps his weekends are spent in churning out such documents in his garden??). Government clearly owns the copyright here–but it seems that the Central Government may be able to charge State Governments that wish to use this.

I cannot comment any further as the facts are not clear. And I refuse to rely fully on a news report that begins with the title “Can a govt officer claim patent for drafting a document?” when this is clearly a copyright issue.

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.


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