(Please Note: The issues and arguments presented here are for academic discussion. They do not reflect any personal stance or opinion of IPRMENTLAW).
Recently in Dipak Ranjan Mukherjee v. Ministry of Commerce & Industry[i] certain information was requested under the Right to Information Act, 2005, regarding compliance records, government letters received, and guidelines for tariff schemes issued by the Indian Performing Rights Society (IPRS).
The Central Information Commission (CIC / Commission) upheld the decision of the Central Public Information Officer (CPIO), wherein the CPIO had decided that the information requested under the RTI Act was not being provided, because such information would cause unwarranted invasion of IPRS’s privacy, being exempt under Section 8(1)(j) of the RTI Act, 2005.
The appellant raised several critical queries, primarily focusing on the registration of the Indian Performing Rights Society (IPRS) as a copyright society and the procedures employed in determining tariff rates—issues that have been a subject of ongoing debate.
In this analysis, we aim to delve into the case while providing a comprehensive background on the underlying issues.
Background Facts
An RTI was filed on 5th January 2023 containing a total of 12 queries seeking detailed information regarding the compliance of the Indian Performing Rights Society (IPRS) with government regulations and inquiries under the Copyright Act, 1957. The RTI asked for reports submitted by the Dangey Commission. Additionally, copies of government guidelines for IPRS’s tariff scheme, details on the participation of Copyright Office representatives in IPRS meetings, and information on ratification of IPRS’s 2018 tariff scheme by the Copyright Registrar, including relevant dates and records were asked for under the RTI.
The CPIO responded to the appellant on 17.03.2023, denying information for certain queries asked under the current RTI, namely Queries No. 1, 2, 4, 5 and 6, citing Section 8(1)(j) of the RTI Act, which exempts disclosure of personal information unrelated to public interest.
Dissatisfied with this response, the appellant filed a First Appeal to the First Appellate Authority (FAA) on 08.05.2023. However, the FAA, through its order dated 04.07.2023, upheld the CPIO’s decision. The appellant remained dissatisfied with the outcome and approached the CIC.
Note: Section 8 (1) (j) of the RTI Act exempts personal information from disclosure unless it serves a larger public interest. It emphasizes that such information, unrelated to public activity or interest, should not be disclosed if it would lead to an unwarranted invasion of privacy. However, information accessible to Parliament or State Legislatures cannot be denied to citizens.
Allegations
Suppression of material facts
It was alleged by IPRS (the defendants) that the case involved instances of suppression of material facts. It was further alleged that the applicant, Sh. Dipak Ranjan Mukherjee, an advocate representing the defendant in a copyright infringement suit filed by IPRS, had suppressed this fact, suggesting mala fide intentions.
It was also alleged by IPRS that the Commercial Court at Alipore had granted an ad-interim injunction against a client of the applicant, Vedic Hotels, restraining copyright infringement. An application under Section 33A of the Copyright Act by the applicant sought to ascertain and lay down guidelines under the scope of Section 33A of the Copyright Act, 1957, including rates for the actual usage of music by Vedic Hotels, being a Hotel/Resort. However, it was alleged that once IPRS filed its reply, this application was withdrawn.
IPRS further alleged that the RTI request appeared to be an inquiry aimed at harassing IPRS and did not serve any public purpose.
Answering Query 1 & 2
IPRS had submitting its application for re-registration on May 10, 2013. The Central Government initiated an inquiry against IPRS appointing Dr. Y.P.S. Dangey as the Inquiry Officer. Following the inquiry, Dangey Commission submitted its report. IPRS was granted provisional registration as a copyright society and a revised registration certificate was issued on June 8, 2018.
The applicant had sought copies of this interim and final report of Dangey Commission under the present RTI.
It was submitted by IPRS that since the Government had decided not to make the report public or table it in Parliament, IPRS argued that releasing it would undermine the protective provisions of the law and compromise the integrity of such inquiries. IPRS also argued that the requested information relates to private rights of copyright holders, which do not involve public funding or public interest and are thus exempt from disclosure under the RTI Act.
Answering Query Nos. 3, 4, 5, and 6:
Query 3, 4, 5, and 6 requested the government letter and IPRS compliance records to the conditions laid down by the Government in its letter. It was argued that these involved sensitive proprietary and financial data of IPRS and would violate the privacy of its 11,000 members. Such data was considered personal information under Section 8(1)(j) of the RTI Act and was therefore protected from disclosure.
The applicant’s intent was alleged to be mala fide, aimed at aiding a private client in a sub-judice copyright infringement case. The disclosure, IPRS argued, served no public interest and could not outweigh the potential harm caused.
Query 7 – Tariff Scheme:
Query 7 related to a request for the Guidelines to determine Tariffs released by the Government. It was submitted that the government had not issued specific guidelines for determining the tariff scheme of IPRS. In such case, Section 33A of the Copyright Act, and Rule 56 of the Copyright Rules, 2013, served as guidelines for formulating such schemes. Therefore, there are no additional documents or guidelines to share.
Queries 8, 9, 11, 12:
These queries requested the names and designation of persons of the Copyright Office, who had attended any meetings of IPRS in 2018 and 2021.
It was submitted by IPRS that the Act and Rules do not mandate the attendance of Copyright Office representatives at IPRS meetings. While the Registrar of Copyright or an authorized representative is invited to general body meetings, relevant meeting details are publicly available on IPRS’s website.
Queries 10 and 13:
It was asked in this query if the tariff scheme of IPRS in 2018 and 2021 was ratified by the Copyright Registrar.
However, IPRS argued that the Copyright Act and Rules did not require or provide for the “ratification” of a tariff scheme by the Copyright Registrar. Tariff schemes are supposed to be developed independently by copyright societies in compliance with Section 33A of the Act and Rule 56. Thus, the requested information was irrelevant and did not exist.
Analysis and Judgement by the Commission
The Commission observed that the Respondent had denied the information sought, as it was alleged to qualify as “personal information” under Section 8(1)(j) of the RTI Act.
The Commission took note of the legal precedent in Supreme Court of India Vs. Subhash Chandra Agarwal[ii] wherein the Court had held that “personal information” would include professional records, qualification, performance, evaluation reports, information relating to assets, and details of investments, lending and borrowing. The Court had clarified therein that the list was indicative, not exhaustive, and such personal information was protected from unwarranted invasion and would only be mandated for disclosure if a larger public interest was proven.
In this case, the Appellant had failed to establish any overriding public interest that would be served by the disclosure of such information. The Respondent informed the Commission that the Copyright Act provided an alternative legal mechanism for aggrieved parties to seek relief. The Commission noted that the Appellant could have pursued this route instead of filing an RTI application.
The Commission therefore concluded that no cause of action subsisted under the RTI Act for further adjudication in the matter.
Does IPRS fall within the scope of RTI?
An implied question that comes from this case is whether a body such as IPRS falls within the scope of an RTI application. It is important to note that the obligation to disclose information only falls on a “public authority”. A public authority is defined under Section 2(h) of the RTI Act, as any institution of self-government established by the Constitution, laws made by Parliament or State Legislatures, or government notifications. It also includes bodies owned, controlled, or substantially financed, as well as NGOs receiving substantial government funding.
A citizen has a right to seek such information from a public authority which is held by the public authority or which is held under its control. Therefore, if we look at IPRS, it may not traditionally fall under the definition of a “public authority”, as it is not known whether the institution is in any way funded by the government.
However, the Board of Control for Cricket in India (BCCI) was declared to be a public authority, even though registered as a private society, performed functions that were public in nature, such as the sole body selecting the national team that would represent India, and make laws to regulate itself, acting as a monopoly. In Smt. Geeta Rani v. CPIO,[iii] the Central Information Commission (CIC) declared BCCI as a public authority under the Right to Information (RTI) Act, making it accountable to the public and requiring it to respond to RTI queries. (This order, however, has been stayed by the Madras High Court and the matter is still subjudice, meaning BCCI is not under any obligation to furnish information yet as a public authority)[iv]
The Supreme Court had already recommended earlier in the case of BCCI v. Cricket Association of Bihar and Ors.[v] based on recommendations of the Justice Lodha Committee, that BCCI should be considered as a State under Article 12 of the Indian Constitution, due to the monopolistic nature of its functions.
In such a case, it is arguable that if BCCI was declared as a public authority even though it was registered as a private society, a copyright society such as IPRS could also fall under the purview of the definition of “public authority”. IPRS (at the time when it was a registered copyright society) could be considered a public authority under the RTI Act as currently it is the sole entity collecting and distributing royalties for musical works and related literary works of all authors in India, making it a monopoly.
The RTI Queries and their Background
It is pertinent to look at the issues raised earlier by various stakeholders in relation to the registration and compliance of IPRS to understand where the RTI questions stem from. There are two things to keep in mind, which are as follow:
a. Government Letter dated 28.11.2017 issued to IPRS regarding its re-registration as a copyright society.
b. Guidelines governing the Tariff Scheme, if any under the Act and released by the Government.
The issues being discussed here are very important, since having a background of the present ruling, they raise a discussion again.
Re-Registration
As we know, the Copyright (Amendment) Act, 2012, required all copyright societies to apply for re-registration. As discussed above, IPRS had applied for the same and the same was granted with certain conditions. We are not sure if the Dangey Commission report, which was an inquiry in the IPRS records, could help ascertain whether any issues exist for re-registration. Since the report was not made publicly available and was also not tabled in the parliament, it is still subject to interpretation.
IPRS was granted registration, with the condition that it must address and comply with observations detailed in the government letter dated November 28, 2017, and submit a compliance report within 60 days. Section 33(3) of the Copyright Act, 1957 specifically emphasizes that copyright society registration is contingent on meeting such prescribed conditions. The section says: “The Central Government may… register such association of persons as a copyright society subject to such conditions as may be prescribed”. However, there was and has been no public disclosure or statement from IPRS confirming compliance with this letter, by providing a compliance report. This issue has already been discussed by us here.
Another point to note is that the current registration of IPRS as a copyright society with the Registrar of Copyright has already lapsed, and there has yet been no renewal of its registration by the Registrar of Copyright. This could mean that, a renewal application has been sent and is currently under consideration, or that the renewal application has not yet been submitted. In either case, IPRS is currently not a registered copyright society.
Merely being recognized as a copyright society by the Central Government may not be adequate, because under the second proviso to Section 33, the business of issuing or granting licences of underlying works can only be carried out through a copyright society duly registered under the Act. If IPRS is not yet a copyright society duly registered under the Act, but still functions as one, it raises questions on whether the second proviso to Section 33 is redundant. For underlying works, even the judgment of Novex v. Trade Wings[vi] may not come to its rescue. While the decision maintained that assignees/owners would continue to have the power to grant licenses over their copyrighted works, it is debatable whether this would extend to cases involving IPRS, especially considering the exclusions specified by the second proviso to Section 33.[vii]
Fixing of Tariffs after user group consultation
IPRS has repeatedly mentioned in this case that the Tariff schemes can be developed independently by copyright societies in compliance with Section 33A of the Act and Rule 56.
It is important to note that Rule 56(4) allows copyright societies to consult user groups while fixing tariffs but does not mandate it, making the consultative process appear optional. However, the intent of the Copyright Act, 1957, and its amendments suggests the need for stakeholder consultation to ensure transparency. The 2010 Standing Committee Report had mentioned that the tariff fixation process often involved arbitrariness / arm-twisting by copyright societies. The Committee pushed for a structured and balanced consultative process, in line with practices followed in telecom and broadcasting sectors.
Transparent consultative processes and reasonable justifications for tariff schemes are considered crucial to ensure fair practices.
Fixing Tariffs after compliance with Guidelines
Rule 56(4) also requires adherence to guidelines issued by courts or the Copyright Board when fixing tariffs. It is stated herein by IPRS that no such Guidelines have been issued by the Court or the Copyright Board for fixing tariffs.
It can be argued that from a plain reading of Rule 56(4) it appears that guidelines should be there to fix tariffs because under Section 33(3) the interest and convenience of the public needs to be considered and in particular it is paramount to the group of persons who are most likely to seek license. This was highlighted in reply to an IPRS notice, by Mr Shekhar Mennon, Founder and TMT / Corporate Lawyer, Medialexicon. This was also discussed in our earlier post here.
Conclusion
The present RTI application, could have given a perfect opportunity to clear out all doubts and concerns raised by industry stakeholders regarding its re-registration and transparency with regards to its process for fixing tariffs, and other issues of royalty distribution. However, this seems to have not been availed to its full extent. Only part replies were provided and the issues still remain up for further debate.
In my personal view, focus of the Commission could have been on the alleged intent of the applicant to pull out information of IPRS for using in another case. However, this meant less focus was given on the merit of the questions themselves. It was important to note that the RTI applications contained questions which required public disclosure, considering the stakeholders benefiting from IPRS royalties include various authors and record labels, and stakeholders paying such royalties include vast number of shops, restaurants, events, etc. This, in my opinion, could be enough to constitute a public interest for disclosure of “private information” (as considered by IPRS). In that case, the exemption under Section 8 (1) (j) availed herein would not be applicable.
Transparency is key when it comes to societies which are made for the larger good of its members, and directly affects the trade of many businesses / establishments. If there is no transparency in the first place, then doubts over the proper functioning will by nature arise, and the only way to avoid it is to release the required information to the general public.
End Notes:
[i] CIC/MOCMI/A/2023/633735.
[ii] Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010.
[iii] Smt. Geeta Rani v. CPIO, CIC/MOYAS/A/2018/123236.
[iv] Board of Control for Cricket in India v. Central Information Commission, WP No.29615 of 2018.
[v] BCCI v. Cricket Association of Bihar and Ors., 2017 SCC Online SC 370.
[vi] Novex Communications v. Trade Wings Hotels Limited, Commercial IP Suit No. 264 OF 2022,
[vii] Ibid, Para 153.
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