Analysing Dipak Ranjan Mukherjee vs. Ministry of Commerce & Industry in Context of Transparency, Privacy and the RTI Act

In an interesting development, the CIC recently rejected an RTI application concerning information on IPRS’ compliance with the Copyright Act, upholding privacy for private organizations and confidentiality of inquiry reports that have not been tabled in front of the Parliament. SpicyIP intern Kartikeya Srivastava analyses this decision from the lens of underlying public interest in the information sought and comments on the dilution of the RTI Act under the guise of privacy. Kartikeya is a second-year law student of the LL.B. course at NLSIU Bangalore. Having freelanced as a patent research analyst, he developed an interest in patent prosecution and in exploring the Patents Act through various interpretative approaches. He is currently engaged in WIPO-Harvard Law School Course in Patent Law and Global Public Health. 

Analysing Dipak Ranjan Mukherjee vs. Ministry of Commerce & Industry in Context of Transparency, Privacy and the RTI Act

By Kartikeya Srivastava

In Dipak Ranjan Mukherjee v. Ministry of Commerce & Industry, the Central Information Commission (CIC) was called upon to decide whether information related to a copyright society, the Indian Performance Rights Society (IPRS), could be made publicly accessible under the Right to Information (RTI) Act. The main contentions in the case were two pronged: whether private copyright societies like IPRS fall under RTI’s purview and can inquiry commission reports like the Dangey Commission Report on IPRS’s re-registration be disclosed under the RTI Act. The CIC ruled against Mukherjee (the applicant) on both fronts. It upheld privacy for private organizations and confidentiality of inquiry reports that have not been tabled in front of the parliament by the government. This blog post will explore these decisions and question their implications considering transparency and public interest in copyright governance. 

Background of the Case

Dipak Ranjan Mukherjee filed an RTI application, seeking information on various aspects of IPRS’s compliance with the Copyright Act. He asked for disclosure of interim and final reports of the Dangey Commission which was set up to investigate the allegations against IPRS’s re-registration as a copyright society. Further, he asked for records and responses related to IPRS’ compliance with government directives in the letter No. F. No. 07-01/2017-CO dated 28.11.2017, setting the condition precedent for registration of IPRS as a Copyright Society (see here for Anushree Rauta’s explanation on this letter). Also, the information about involvement of Copyright Office officials in IPRS’s meetings and on the ratification of IPRS’s tariff schemes were asked in the application. Pursuant to this, the Central Public Information Officer (CPIO) denied access to these documents, using third-party privacy and personal information exemptions under Section 8 (1) (j) of the RTI Act (See below for the screen shot of the provision).

Screenshot of Section 8(1)(j) of the RTI Act stating "(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the
individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the
disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. "
Screenshot of Section 8(1)(j) of the RTI Act.

Mukherjee filed the first appeal before the First Appellate Authority, which was denied, pursuant to which he approached the CIC. This led to CIC’s ruling on applicability of the RTI Act to Copyright Societies like IPRS and status of inquiry reports. 

Do Copyright Societies Fall Under the RTI Act?

IPRS is a copyright society which is responsible for licensing and managing rights on behalf of music composers, publishers, and authors. The first issue pertained to whether such an entity can be made to disclose information under the RTI Act. Mukherjee argued that the information he sought involved public interest, as IPRS’s activities affect a broad range of stakeholders, including creators, licensees and the public. The CIC denied this contention and upheld IPRS’s argument (submitted as a third party submission), that the information sought involved sensitive financial and operational data of a private entity, which is protected by Section 8 (1) (j) of the RTI Act. 

The CIC’s position seems to create more confusion than clarity about the RTI’s scope. The fact that copyright societies are private entities does not take away from the impact they have on the public. The call for greater transparency in the functioning of these societies stems from the recognition of their role in licensing and royalty distribution- one that significantly influences public access and the rights of creators. This can be conceptualised as “public interest” under Section 8 (1) (j) of the RTI Act. While IPRS may be a private entity, the power vested in the organisation by virtue of its assuming a monopolistic position, can be used to impact creators’ compensation, their access to content and the sector as a whole.  Section 33 (3) of the Copyright Act also mandates the Central Government to consider public interest, particularly the convenience of groups most likely to seek licenses, when registering a copyright society. It specifically requires “interests of the authors and other owners of rights under this Act, the interest and convenience of the public and in particular of the groups of persons who are most likely to seek licences in respect of the applicants”. This public interest element aligns copyright administration with societal welfare and accessibility. Further, it is strengthened by the government’s conscious effort to ensure that only one copyright society is registered corresponding to a single class of works. Proviso to Section 33 (3) states that the government shall not register more than one copyright society in the same class of works. Copyright Societies like IPRS (for musical works), and Phonographic Performance Ltd. (PPL) (for sound recordings), often work as monopolies in their respective sectors. The monopolistic power of these societies gives them considerable power in licensing and royalty distribution for their sector, impacting businesses, the public at large, and other stakeholders. 

In 2018, the Central Information Commission declared the Board of Control for Cricket in India (BCCI) as ‘public authority’ under the RTI Act. The case highlighted how entities performing public functions, despite being private organizations, should be subject to transparency obligations under the RTI Act. BCCI carried out public functions and  held a similar monopolistic power over selection of the national cricket team and regulating cricket in India. The reluctance to bring IPRS under the RTI Act mirrors the initial resistance to treating the BCCI as a public authority. However, as seen in the BCCI case, transparency becomes imperative when private entities significantly affect public welfare.

Dangey Commission Report Disclosure

Mukherjee further asked for information related to the Dangey Commission report citing its relevance to copyright regulation. The Dangey Commission was set up to investigate the re-registration of IPRS as per the amendment in the Copyright Act in 2012. The IPRS reasoned that since the report was not tabled before the parliament or legislature, it could not be regarded as a “public document” and cannot be disclosed. It is important to note that the decision by CIC against the appellant did not include this argument by IPRS. In context of IPRS’ argument, it must be understood that Government inquiries are meant to serve a wider accountability and transparency role, even if not formally tabled before any legislature or the Parliament. Treating untabled reports as private would hinder the investigative functionality that is provided by RTI. Additionally, the RTI Act does not require that a document be tabled for it to be disclosed. It requires an “information” to be disclosed, which comes in with an expansive definition within the Act. In the past, IPRS has acted recklessly, to say the least, while acting in the capacity of a copyright society. A series of blog posts by Prashant Reddy highlight this in detail. From allegations of withholding crores in royalties to failing in fund distribution to rightful members, they have conveniently used the title of copyright society to their advantage. Given the history of allegations against IPRS and the public interest involved in the functioning of the Copyright Society, as explained above, it is imperative to disclose information like the Dangey Report through RTI Act 

Also, the reasoning stated in the decision that Mukherjee was not an “affected party” in the matter and hence, no cause of action subsists, is not grounded in law.  Section 6 (2) of the RTI Act states that an applicant making a request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him. This implies that the applicant need not be a stakeholder to file an RTI application.

Section 8 (1) (j) and the Risk Posed by DPDP Act, 2023

The systemic disregard to public interest, especially in instances concerning RTI Act is perhaps one of key reasons for an opaque system in place. Apart from problematic, narrow orders by the concerned authorities, we can see that the RTI Act is further diluted by the amendments to it under the Digital Personal Data Protection (DPDP) Act, 2023. Section 8 (1) (j) exempts personal information that is unrelated to the public or that would invade privacy. A proviso to the Section states that information which cannot be withheld from the Parliament, cannot be denied to the public. This is essential for accountability and transparency and acts as a shield against attempts to evade this accountability in the name of privacy. However, the Digital Personal Data Protection (DPDP) Act, 2023 poses a significant threat to this as  it removes the proviso to the Section and condition of public interest, limiting the Section to “information which relates to personal information”. It provides leeway for arbitrary protection of information which may be classified as personal information but is in public interest. For example, information on immovable assets of public servants, including judges and politicians, would be classified as personal information as per the new Act.

Section 8 (1) (j) has been under constant fire for being misused since its inception. Some cases are reported here. It has often been used to evade accountability, especially by government officials. Many such examples have piled up throughout the years. There have been denials for disclosure of the Annual Confidential Report (ACR) of a public officer and details of gifts received by a public servant along with other such documents. Shailesh Gandhi, an RTI activist and Former Central Information Commissioner analyzed Girish Ramchandra Deshpande vs. Central Information Commissioner in detail and criticised the interpretation of Section 8 (1) (j) by the Supreme Court. It can be read here. These examples prove how Section 8 (1) (j) has been weaponized and it will only become worse with the DPDP Act. It can potentially be used as a veil to stop administrative irregularities from being disclosed. 

Need for a Balanced Approach

This order overlooks the quasi-public role of copyright societies. IPRS manages licences and royalties for many composers, publishers, and authors which impacts the public at large. It affects who can use this content and who is eligible to be sued. Transparency and accountability are fundamental requirements to do justice in this regard and maintain the spirit of the RTI Act. The order mentioned that an alternative method was present under the Copyright Act in the present case but does not specify it. It underscores a restrictive view of the RTI Act which is also reflected in the new DPDP Act. There is a need for greater transparency obligations of quasi-public entities like IPRS. The RTI Act’s interpretation must keep public interest at its core, and it must protect the Act’s protective mechanisms as well. A nuanced balance is needed between transparency and privacy but this order tilts the balance in one direction which is further aggravated by the DPDP Act. 

Thanks to Swaraj, Praharsh and Lokesh for their comments on the post and the order. 

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