[Long Post ahead!]
In Nov. 2023, the Bombay HC (Nagpur Bench) delivered a salient judgement, with significant implications for both the SC/ST Act and “Intellectual Property”. Rightfully, the case was highlighted for its positive outcome in providing monetary relief to the Dalit researchers for the theft of their research data. However, while the case is certainly a situation of just and deserved outcomes, the jurisprudential path the case took brings up some concerns that have gone unscrutinised —can research data, often uncopyrightable in itself, still be protected under IP laws? Moreover, does equating IP with tangible property risk distorting its fundamental purpose? In this post, I seek to answer these questions while also arguing that the more jurisprudentially rigorous path (in reaching the same outcome) would’ve been to classify data as “intangible property” that had been stolen, rather than as “intellectual property”.
The Legal Battle
In 2014, Drs. Das and Uike conducted a survey on “socio-political awareness among the youth of Nagpur” wherein they collected “more than 500 samples…from students of various educational centres.” In 2018, owing to a dispute, their landowner “broke the locks of the premises where the Petitioners resided and took away raw research data, survey forms and process data by stealing the Petitioners’ laptops.” The laptop contained the raw data collected during the survey conducted in 2014 and other research data.
The couple petitioned the National Commission for Scheduled Caste (NCSC) to seek compensation for the “loss caused due to the damage to their intellectual property (IP).” NCSC, nudged by the BHC, initiated an inquiry and submitted a report recommending “compensation as per the Atrocities Act and rules”
In response, the State refused to provide compensation for the loss of raw data collected during the survey under Rule 12(4) for ‘damage to property.’ Why? They argued that ‘property’ in the SC/ST rules means tangible and physical property and not intellectual property. Further, there was no method to quantify such loss, if applicable.
Thus, the question stood- does ‘damage to property’ include damage or loss to IP? However, the more crucial jurisprudential point here is that it does not need to be “Intellectual Property” to be protected! Whether it is covered by any form of intellectual property is one area to explore. However, the more critical argument here is that ‘intangibleproperty’ should be protected from theft / protected under the Atrocities Act too. The fact that it is intangible, doesn’t mean that the only way to think of it is through the lens of ‘intellectual property’.
Data and Intellectual Property
What was the “IP” involved in this case? First of all, “IP” is not a legal subject matter per se. There are several legal concepts under the umbrella term “IP”. Let’s look at them one by one.
The obvious first place to look at would be copyright. As shown above, the raw data collected during the survey. Can data collected during a survey or research project be copyrighted? Under the Copyright Act, facts do not enjoy copyright protection. To enjoy copyright, a work must meet the standard of modicum of creativity. Therefore, data per se does not get copyright protection. However, a compilation of data does enjoy copyright u/s. 2(o). Various Indian case laws exist on the same. (here) Even in the US, data compilation is copyrightable even when the underlying individual dataset is not. (Feist Publications v. Rural Telephone) Thus, data compilations (selection and arrangement of data) can be copyrightable even when the underlying data is not. s
In addition, data can be protected as a trade secret (TS). Although India does not have a separate legislation on TS, it can be protected under the broader regime of Contract Law and Common Law remedies. (here and here) In this case, one will need to prove that the data compilation does qualify as TS or confidential information. (confidential, economic significance, reasonable steps taken to keep it confidential.) In the US, this paper points out that most research data is a trade secret since, in the early stages of research, data is not known and derives economic value owing to the secrecy.
Is there a sui generis protection for computer databases? (see definition of computer database)
Unlike Europe, India does not have sui generis database rights. However, sec. 2(o) of the Copyright Act provides that ‘literary work’ includes tables and compilation including a computer database. Database, according to this DSIR piece, should be treated as standard copyrighted work. Sec. 43 of the IT Act provides that anyone who, without permission, extracts a computer database will be liable to pay compensation. This post points out that a database will be copyrightable as long as it shows the application of skill and judgement. As opposed to copyright, a database right protects individual components of a database. (here) However, given the lack of clarity on the extent of protection of databases in India, it is unclear whether underlying raw data would receive protection under copyright.
Based on the above, one could argue that the 500 samples collected during the survey, at least the selection and arrangement thereof, enjoyed protection under copyright. It could also be argued that the raw data can be classified as a trade secret, although it will be difficult to calculate the commercial value of the data. Whether it was specifically thought of in these lenses, is difficult to say though, as the order does not go into any of these specifics!
The Conflation Zone: Intellectual Property, Intangible Property and Data
The judgement, at times, interchangeably uses ‘data’ and ‘IP.’ As pointed out above, the term IP per se is meaningless. Data, on one hand, is the research data collected during the survey whereas, let’s say, copyright, on the other, is an exclusionary right over the compilation or arrangement of the collected data. (copyright or TS) It is perhaps possible that the Judge wanted to say that the loss of data has resulted in the infringement of copyright or some specific strand of IPR. The Judge seems to have conflated the words ‘intangible’ and ‘intellectual.’ Merely because something is intangible does not mean it must be placed within the IP framework. Although collecting research data was an intellectual exercise, the ‘intellectual’ in IP is subjective and meaningless on its own insofar as providing any conceptual or legally useful guidance to what comes under the umbrella of “IP”. Swaraj and Lokesh discuss this in great detail here. (here)
The lack of clarity (or understanding) on this aspect has an important implication. Are the couple claiming compensation for the intrinsic worth of the data (value of the data per se) or infringement of their IP over the data? If the former, the remedies lie under the IPC for data theft. Remedies for the latter lie under the applicable IP statute. The conceptual unclarity around data and IPR, thus, complicates the discussion.
In the following section, instead of invoking the term IP, I will collectively refer to copyright, patent, TS etc. as ‘exclusionary right.’ (‘ER’)
Tangible Property and Exclusionary Rights
In this case, the petitioner argued that ‘property’ under Rule 12 included “data, electronic material and intellectual rights to such data and material contained in electronic or digital form.” It is not clear as to what authorities or cases were cited by the Petitioners to make this argument.
Courts on various occasions have said that the word ‘property’ is not limited to tangible property but also includes intangibles like copyrights and other ERs.(here) The rationale? That the rights provided by ER are analogous to rights available for tangible property. The DHC, in a case, had observed that “IP…can be dealt with and owned like rights associated and analogous with ownership of tangible property…for it can be assigned/transferred, mortgaged or licensed.”
In this case, the Court uses a similar logic: since ER, like tangible property, can be valued in monetary terms, it is part of ‘property’ under SC/ST rules.
Instead of adopting this route, the Judge could have easily said that the research data is an intangible property. This way, it would be fairly easy to argue that research data is also part of the word ‘property’ under Rule 12.
The protection of research data under the copyright framework, as shown in the previous section, seems weak. Further, copyright over research data risks impeding the dissemination of knowledge and information. (here) Intangible property, however, does not come with a baggage of new rights and liabilities like copyright. For instance, placing it outside the framework of ER would mean that the petitioner is not required to satisfy the conditions under copyright, TS etc. Mere proof of ownership would suffice.
Instead, the Judge chose to equate ER with tangible property to include it within the SC/ST Act. Let’s leave aside whether research data can be protected under the copyright umbrella. Equating ER with tangible property has a real risk. How?
Amlan, in his post, provides a clue. When an ER is infringed, the owner of the work is not deprived of using it. (think pirated music) However, stealing their property does take it away from the owner’s possession. Infringement and theft are distinct- the former applies to ER and the latter to tangible property. There is another difference.
ER is supposed to only ensure that creators can recoup their costs. Otherwise, it is assumed, that authors will not produce creative work. That’s it. ER does not seek to provide rewards beyond what is necessary to recoup the fixed cost. (here)
If ER is considered the same as tangible property, there is a danger of broadening the scope of incentives for authors. How? The idea behind property rights is to internalise beneficial and harmful externalities. (here) To put it plainly, property rights emerged to ensure that the benefits arising from private property are enjoyed only by the owner.
The logic of internalisation, if applied to copyright, would mean that only the author is entitled to derive benefits arising out of the work. As Amlan argues, this restricts access to knowledge and the free flow of ideas. The equation of ER with real property, thus, distorts the underlying logic of providing temporary protection.
Acknowledging the Value of Dalit Intellectual Labour
Legal points aside, the outcome of the case is a cause to celebrate, in a country where caste disparities often invisiblises work done by Dalits and oppressed castes. It is noteworthy that the Das and Uike did not engage a counsel: they argued the case on their own! During the proceedings, the Judge had remarked: “Under the SC/ST Atrocities Act, we usually get uneducated people. Your case is rare and unique.” (here) The inclusion of ER under ‘property’, although conceptually problematic on technical grounds, does at least make an explicit social statement by recognising and acknowledging the value of intellectual labour produced by a Dalit scholar. The legal complications highlighted could have been avoided if, as argued above, the research data was simply considered as intangible property. This judgement adds a social layer to this intellectual research work by including it within the framework of the SC/ST Act, realising the evolving nature of discrimination committed against marginalised communities. However, as this article says, the petitioners are yet to receive their compensation. The Petitioners are planning to initiate contempt proceedings if compensation is not processed in the 3-4 weeks. (here) Readers are welcome to share any updates in this regard in the comments. One can only hope that after the SC ruling, the situation improves.
[I am thankful to Prof. Deshpande and Swaraj for their invaluable inputs]