Making of National IPR Policy: DIPP responds to RTIs filed by CIS

Centre for Internet and Society filed RTIs with DIPP regarding the “making” of IPR Policy and functioning of the Think Tank. DIPP responded to them. These are available here. RTI requests dealt with a) the process followed by the IPR Think Tank while framing the first draft of the Policy (released in December, 2014); b) details and documents of meeting held to draft the Policy; c) details and documents of all/multiple meetings held to draft the Policy and d) all suggestions and comments received by the IPR Think Tank from stakeholders. As to summarise the responses of the DIPP, the responses are incomplete and vague in most of the cases. DIPP tried to delink itself from the Think Tank by stating that the information is available with the Think Tank and not with them.

Swaraj had earlier voiced concerns on the lack of transparency in the formation of Think Tank in spite of some of the meritorious facets of the Draft Policy. The DIPP responses have, in fact, only fortified those concerns. The RTI responses show that the stakeholders have not been adequately represented in the meeting which constituted the Think Tank.

I would also like to red flag certain issues in the context of RTI Act:

Firstly, DIPP tried to delink itself from the Think Tank by stating that the requisite information is available with the Think Tank and not with them. This does come across as a “puerile” response. The Think Tank was constituted by the DIPP. The parent organization cannot, therefore, wash off its hands. Note that Section 20 of Right to Information Act, 2005 imposes penalty on “incomplete” information.

Secondly, can the Think Tank itself be considered as “public authority” under the Right to Information Act, 2005? If so, the Think Tank will have to comply with Section 4 (“Obligations of public authorities”) and Section 5 (“Designation of Public Information Officers”) of RTI Act. But does it fall under the ambit of “public authority”? I am not sure as the pertinent information is unavailable. I can only make certain conjectures. Even then, I am inclined to perceive the Think Tank as a “public authority”. Note that “public authority” under RTI Act is a contested area. Recently, Delhi HC held Attorney General’s office to be “public authority” under RTI Act. The Division Bench stayed the aforesaid order.

Public Authority is defined in Section 2(h) of the RTI Act:

“(h) “public authority” means any authority or body or institution of self-government established or constituted,-(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any –
(i) body owned, controlled or substantially financed;
(ii) non-Government Organization substantially financed, directly or indirectly by funds provided by the appropriate Government;”

The Think Tank will not fall in (a), (b) and (c). It is likely to fall in (d). The Think Tank was constituted by DIPP (under Public Notice No. 10 (22)/2013 –IPR-III dated November 13, 2014). Further, it may also fall in (d)(i) as it is likely to be “substantially financed”. The words “substantially financed” were elaborated in Thalappalam Service Cooperative Bank Ltd & Others v. State of Kerala:

“36. …..The expression substantially financed, as such, has not been defined under the Act. Substantial means in a substantial manner so as to be substantial. In Palser v. Grimling (1948) 1 All ER 1, 11 (HL), while interpreting the provisions of Section 10(1) of the Rent and Mortgage Interest Restrictions Act, 1923, the House of Lords held that substantial is not the same as not unsubstantial i.e. just enough to avoid the de-minimis principle. The word substantial literally means solid, massive etc. Legislature has used the expression substantially financed in Sections 2(h)(d)(i) and (ii) indicating that the degree of financing must be actual, existing, positive and real to a substantial extent, not moderate, ordinary, tolerable etc.

37. We often use the expressions questions of law and substantial questions of law and explain that any question of law affecting the right of parties would not by itself be a substantial question of law. In Black’s Law Dictionary (6th Edn.), the word ‘substantial’ is defined as ‘of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real: not seeming or imaginary; not illusive; solid; true; veritable. Something worthwhile as distinguished from something without value or merely nominal. Synonymous with material.’ The word ‘substantially’ has been defined to mean ‘essentially; without material qualification; in the main; in substance; materially.’ In the Shorter Oxford English Dictionary (5th Edn.), the word ‘substantial’ means ‘of ample or considerable amount of size; sizeable, fairly large; having solid worth or value, of real significance; sold; weighty; important, worthwhile; of an act, measure etc. having force or effect, effective, thorough.’ The word ‘substantially’ has been defined to mean ‘in substance; as a substantial thing or being; essentially, intrinsically.’ Therefore the word ‘substantial’ is not synonymous with ‘dominant’ or ‘majority’. It is closer to ‘material’ or ‘important’ or ‘of considerable value.’ ‘Substantially’ is closer to ‘essentially’. Both words can signify varying degrees depending on the context.

38. Merely providing subsidiaries, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist. The State may also float many schemes generally for the betterment and welfare of the cooperative sector like deposit guarantee scheme, scheme of assistance from NABARD etc., but those facilities or assistance cannot be termed as substantially financed by the State Government to bring the body within the fold of public authority under Section 2(h)(d)(i) of the Act. But, there are instances, where private educational institutions getting ninety five per cent grant-in-aid from the appropriate government, may answer the definition of public authority under Section 2(h)(d)(i).”

For some of our earlier posts on the Draft IPR policy, see here, here and here.

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his second year of Law School (in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property). His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property. Winner of almost a dozen essay competitions in his Law School days, he was involved in various research and policy initiatives relating to intellectual property. Mathews is, currently, based out of Munich, Germany. He had earlier done his LLM in 'IP and Competition Law' from Munich Intellectual Property Law Centre (jointly run by Max Plank Institute for Innovation and Competition, University of Augsburg, Technical University of Munich and George Washington University, Washington).

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