CAT-IIM Organizers invoke ITA 2008 to threaten students
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 ca fair
sue. 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
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
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
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
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
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
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
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.
Related Article in Hindustan Times
October 19, 2011