According to Hindustan Times report today, Mr Janakiraman Moorthy, convener of CAT 2011 (Common Admission Test for entrance into IIMs in India)  has given a press statement as follows

“If any candidate discloses, publishes, reproduces, transmits, stores, or facilitates transmission and storage of the contents of the CAT in any form or by any means, they shall be violating the Indian Contract Act, 1872 and/or the Copyright Act, 1957 and/or the Information Technology Act, 2000. Such actions may constitute a cognisable offence punishable with imprisonment for up to three years and fine up to Rs 2 lakh,”  ..“There is secrecy only in terms of the test content which is important for protecting IIMs’ intellectual property. We will take the necessary measures to monitor these disclosures,”

All those students who take up CAT examinations this year will be made to sign a Non Disclosure Agreement (NDA) which is the basis of the above statement. It is clear that the NDA will claim copyright on the question papers which are presented to students in electronic form and prohibit disclosure. If violated therefore it will be claimed as a violation of contract, infringement of copyright and also an offence under ITA 2008.

It must be recognized that Copyright Act is an act which is meant to protect creativity so that there is an incentive for authors to produce better products. It was never intended to be a tool of exploitation.

I recall the words of an US Judge which has relevance in the current context:

“The primary objective of copyright is not to reward the labor of authors, but “[t]o promote the Progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. — Justice Sandra Day O’Connor (Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 349(1991) “

I request  we read the above para again and again until the exact import of what the Judge said sinks into our mind.

Even the “Fair Use” concept of Copyright Act has always considered “Education” and “Examination” in a different mould than reproduction of content for gain. For example, use of copyrighted material for the purpose of education is not an infringement of Copyright and is a fair use. Hence if the questions of a past examination is used for teaching and preparing the students for future examinations or by a student to prepare himself better for the next attempt, it cannot be considered as a violation of Copyright.

Similarly use of copyrighted material in framing questions, and in answers is also out of bounds for Copyright penalties.

It is therefore improper for IIM to invoke or threaten to invoke copyright act on students who discuss CAT paper after they come out of the examination hall.

Now let us turn our attention to the alleged violation of ITA 2008. We must appreciate the ingenuity of IIM authorities to remember that there is a law called Information Technology Act 2008 (ITA 2008). Though IIMs have not considered it necessary to teach ITA 2008 to the students for their betterment as “Managers of the Digital Era”, they have identified the penal aspects of ITA 2008 to punish the future managers if possible. This is a negative mindset of the authorities which does not augur well for the future of our society.

It is not clear which section of ITA 2008, Professor Moorthy has in mind to be applied when a student discusses the questions he attended from his memory. So far in the case of “Data Theft”, an offence is recognized when the electronic data is downloaded in electronic form and carried away through a CD or through an e-mail etc.

However what IIM wants to do now is to say that what the student carries in his memory is also subject to the claim of “Data theft”. If accepted this would create a dangerous precedent that will completely ruin our society. All employees who work in one organization and shift to another using their past experience will now be liable to be charged of having carried the IP of the previous organization in their memory.

I would like IIM professors to think how much of what they teach in the class is their original thinking and how much is a reproduction from other sources. If any professors are providing consultancy to any industries one can easily say that they are transferring data from their IIMs to the commercial organizations that they consult and from one such organization to another.

The damage that the proposed concept can do to the general work environment in the industry is hard to fathom.

Legally speaking, once the electronic data goes into the human memory and later downloaded in voice form or in instructions to the hands for writing  on a paper or  typing to a computer it ceases to be an “Electronic Data”. Reproduction from memory however accurate it is to the original is a reproduction from a human brain. Hence it cannot be considered as a “Copying” of electronic data. Hence application of ITA 2008 to the downloading from human memory cells cannot be accepted.

Moreover for any penal section of ITA 2008 to be applied there has to be a malicious intention to make a wrongful gain or inflict a wrongful loss. It is difficult to find such intentions when a student discusses his paper outside the examination hall. The intention is to know the answer for self improvement. This cannot be considered as “Wrongful gain”. If it helps another persons it is “Education” and again not a “Wrongful gain”.

Further who suffers “Wrongful loss” on account of disclosure of the questions?. Is it IIM? if so how?.. are questions which are difficult for IIM to answer.

If therefore the disclosure cannot be considered an offence under ITA 2008 or Copy right Act having any clause in the contract to make it an offence is an act of “bad faith”. Given the fact that the contract is a standard form contract from a dominant party, the contract would be considered “Unconscionable” to the core and unlikely to pass the test of a fair contract.

It is better that IIM does not think of shielding its own inefficiency to create a large question bank which can be shuffled adequately for different students to avoid repetition by holding out threats to the hapless students. If GMAT and other competitive exams can be conducted efficiently without the threat of questions being leaked, it is difficult to understand why IIM cannot be equally efficient. We are all aware of how IIM failed in conducting the online examination when it conducted for the first time and instead of improving their question bank they seem to be taking shelter of law.

In the light of the above the stand taken by IIM as reflected in the press statement is highly regrettable and has to be condemned as arrogant and unlawful. It would be better if IIM withdraws the above statement and avoid a serious damage to the reputation of the organizations that represent the apex management education in the country.

At a time there is a global awareness on the need to curb the greedy mentality of business houses, IIMs in India have to set an example of ethical and fair approach to their prospective students.

Naavi of Naavi.org

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