Copyright in “Standards”: Taking a look at the PIL by Malamud, Sinha & Kodali against BIS

The issues of copyrights in standards is back in the limelight after a recent judgment of a Federal Court in the US, ruling against Public Resources in a lawsuit filed against it by standards bodies like the American Society for Testing and Materials (ASTM), the National Fire Protection Association (NFPA), etc. Techdirt provides a nice summary and analysis of the judgment.

The works at dispute in this case were “standards” which were developed by private bodies but then made compulsory by the law. The function of “standards” is to provide requirements, specifications for a product or a process, and can be aimed at ensuring either safety or consistency or interoperability. Once a standard is incorporated into the law, it is compulsory for every person operating in the field to adopt that standard.

Unlike in the US where most standard setting organisations are private bodies, in India, there is a statutory body called the Bureau of Indian Standards (BIS) which is tasked with laying out standards. It should however be noted that not all standards notified by the BIS are compulsory for the industry, rather only those notified as compulsory under Section 14 are required to be mandatorily followed by everybody in the country.

Despite being so vital to both the industry and consumers, these standards are made available by the BIS only on payment and from what I’ve read these standards are quite expensive. As per the PIL (discussed below in greater detail), BIS earned a total income of Rs. 324 crores and a surplus of Rs. 44 crores in the year 2014 from the sale of publication containing these standards.

The petition filed with the Ministry of Consumer Affairs in 2014

In 2014, Swaraj had written about a petition that was submitted to the Ministry of Consumer Affairs to ensure free availability to the public of all standards developed by the BIS. The signatories to the petition were Carl Malamud, who is the founder of Public Resources, Mr Sam Pitroda, Dr Sushant Sinha, Prof Dhrubajyoti Sen, Prof T.I.Eldho, Mr Srinivas Kodali, Dr Vinton G. Cerf and Swaraj.

The background to the petition as Swaraj explained in his earlier post was as follows:

“In June, 2013, Carl Malamud, on behalf of Public.Resource.Org procured a complete set of Indian Standards from BIS and not only made them available online for public non-commercial use, but also took great pains to retype and process many of the standards to make them more useful to people – including redrawing 202 diagrams in in SVG vector format to allow for them to be resized and cut and pasted into documents by users, retyping and reformatting the entire National Building Code of India (as well as over 700 other Standards) into valid XHTML code so that it works in modern browsers and mobile platforms (E.g., see here), etc.

However, when he applied for a renewal in 2014, he received a reply stating that his efforts were against the copyright policy of BIS and was requested to remove all documents relating to the standards from his website, failing which legal action would be taken against him for violation of their copyright.”

The PIL before the Delhi High Court

The year after this petition was filed, three of the signatories – Carl Malamud, who is the founder of Public Resources, Dr Sushant Sinha who is the founder of the fabulous Indian Kanoon and Mr. Srinivas Kodali who is a self-described “civic hacker” and the co-founder of Open Stats, filed a public interest litigation (PIL) before the Delhi High Court through the law firm, Nishith Desai Associates (NDA) asking for standards notified by BIS to be made available to the public for free without any payment.

The petition and associated documents can be accessed on the Public Resources website. Thomas had discussed some of these issues in an earlier post. The legal arguments put forth by the petitioners rests on the four legs.

The first is based on constitutional arguments where the petitioners argue that Articles 14, 19 and 21 of the Constitution have been interpreted to ensure that all citizens have fundamental right to know and be informed. The petition also draws attention to the fact that the BIS standards deemed compulsory are as good as the law and that citizens should therefore have the right to be informed of the law. It cites Supreme Court decisions which have interpreted the fundamental right to free speech to include the right to educate and also the right to inform.

While it is correct that Article 19 has been interpreted to include the right to information, I don’t think this argument adequately addresses the issues posed by copyright law. Does a right to be informed include the right to be informed for free and without payment and what about the copyright that exists in government works under the Copyright Act?

The second argument of the petitioners is based on the Right to Information Act, 2005. The petition cites decisions of the RTI Act to argue that BIS being a public authority will have to make available its standards in response to an application under the RTI Act and that public authorities cannot deny such information on the grounds that the government’s copyright will be violated. This is true, there are CIC judgments which make it clear that the government cannot deny information on the grounds that it may be violating its own copyright. However these decisions do not extinguish the copyright in the government works which means that although the government is required to supply information to whomsoever asks for such information, it can do so at the rate prescribed by the RTI rules governing it. Therefore if a person receives copyrighted works from the government, he does not automatically get the right to reproduce or publish the work.

Additionally the petitioners could have made an argument on the basis of Section 4 of the RTI Act. This provision creates a duty upon all public authorities to publish all rules, regulations, manuals and records, held by them, or under their control or used by its employees for discharging official functions. The BIS should therefore technically make available all the standards it developed under this provision.

The third argument which is based on Section 52(1)(q)(i) of the Copyright Act is the strongest in my opinion. This provision categorically states that it shall not be copyright infringement to reproduce or publish any matter which has been published in any Official Gazette. The petition draws on Rule 7(1)(b) of the BIS Rules which mandates the publication of the standards in the Gazette of India. According to the petitioners, BIS “does not publish the complete Indian Standards in the official gazette but merely publishes the Indian Standard number and the title of the Indian Standard stating that such Indian Standard is established and a complete copy thereof is available for sale at its office.” The petition links to one such publication in the Gazette of India and it is quite clear that BIS is not publishing the entire standard as required by the rules.

The fourth argument is that Rule 7(9) of the BIS Rules, which grants the BIS the power to decide the pricing of its standards, is unconstitutional. The petition argues that the parent legislation, the BIS Act, does not grant BIS the power to charge any fees for making available these standards. When the parent legislation does not delegate any such power to BIS, it follows that BIS charge for accessing copies of the standards. This, I think is a convincing argument because the legislation is silent on the power of the BIS to charge for standards. The legislation only allows the BIS to charge for the purpose of granting a licence for the use of the “Indian Standards Certification Mark”. If the BIS has not been given the power by Parliament to charge for access to standards, it cannot create this power by itself through regulations.

My one major complaint with this PIL is the manner in which the prayer has been worded. Ideally, the prayer should have sought three writs to be issued by the Court. The first prayer should have been a writ of mandamus directing the BIS to enforce Rule 7(1)(b) by publishing the entire standard in the Gazette of India. This would then automatically trigger Section 52(1)(q)(i) of the Copyright Act. A second prayer should have specifically sought for a declaration that Rule 7(9) is unconstitutional for reasons already discussed above. A third prayer should have sought a writ of mandamus directing BIS to enforce Section 4 of the RTI Act.

The actual prayer in this PIL is rather vague. I reproduce it as follows:

  1. Issue a writ of mandamus directing Respondent No.2 to make available all Indian Standards / BIS Standards free of cost or at such rates this Hon’ble Court may deem fit and proper,
  2. Issue a writ of prohibition, restraining Respondent No.2 from charging exorbitant fees / charges on any future Indian Standards / BIS Standards.

How can a court grant such prayers, when there are specific rules on the statute book allowing BIS to charge for its standards? Shouldn’t the prayer aim to strike at the rules requiring BIS to charge?

In any case, I think this is a fascinating case and I’m keenly looking forward to a judgment from the Delhi High Court.

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

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