No copyright in political campaign idea: Patna High Court quashes FIR against Prashant Kishor

The Patna High Court has quashed a criminal case against political strategist Prashant Kishor over allegations that he had stolen data and campaign material for his “Baat Bihar Ki” political campaign [Prashant Kishor Vs State of Bihar].

Justice Sandeep Kumar held that the allegations, even if taken at face value, did not make out offences of forgery, cheating or criminal conspiracy under the Indian Penal Code (IPC).

"It is already crystallised that there can be no copyright in an idea, subject matter or themes. The informant can not use the phrase ‘intellectual property’ as an incantation to invoke the rigours of criminal law," the Court added.

The case arose from an FIR registered at Patliputra Police Station in Patna in 2020 on a complaint by one Shashwat Gautam.

Gautam claimed that he had conceived a data-driven political campaign called “Bihar Ki Baat” ahead of the Bihar Assembly elections.

According to the complaint, the campaign was based on socio-economic data of Bihar and included a concept note, campaign designs, workflow, algorithms and other material. Gautam said that he had registered the website “www.biharkibaat.in” on January 7, 2020.

He alleged that one Osama Khurshid, who was associated with the campaign, stopped coming to office in February 2020 and left with an office laptop containing the campaign data and designs. Gautam further alleged that Kishor later launched “Baat Bihar Ki” using the same material and registered the website “www.baatbiharki.in” on February 16, 2020.

On these allegations, an FIR was registered against Kishor citing the offences under Sections 467, 468, 471, 420, 406 read with Section 120B of the Indian Penal Code.

Kishor moved the High Court seeking quashing of the FIR. He argued that the case was essentially civil in nature and had been given a criminal colour. His counsel submitted that there was no allegation that Kishor himself stole the laptop. At best, the allegation was that the material was allegedly stolen by Khurshid and later used by Kishor.

The Court accepted the argument.

On the forgery charges, the Court said that offences under Sections 467, 468 and 471 IPC require the making of a false document. However, there was no allegation that Kishor made, signed, sealed or executed any false document.

The Court also rejected the cheating charge under Section 420 IPC. It said there was no allegation that Kishor made any representation to the informant, false or otherwise, on the basis of which the informant parted with property.

“At its highest, the petitioner is alleged only to have used, at a later stage, the data said to have originated with the informant,” the Court said. It held that this did not satisfy the ingredients of cheating.

The Court further held that once the substantive offences (forgery, cheating, etc.) were not made out, the charge of criminal conspiracy under Section 120B, IPC also could not survive.

On the intellectual property theft claim, the Court said that the data referred to by the complainant did not fall under any protected category of intellectual property, much less under the Copyright Act.

The complainant had not stated that the concept note, campaign design, workflow or algorithms were registered or protected in a manner that would attract penal provisions, the Court noted.

The Court said that these materials, stored on a laptop, were incorporeal in nature and that no offence of theft was made out in the absence of a specific legal fiction.

It also relied on the principle that there can be no copyright in an idea, subject matter or theme. A derivative work drawing heavily from public sources such as census reports and economic surveys could not qualify for the protection asserted by the complainant, the Court added.

The Court also noted that Gautam had already filed a civil suit on the same subject matter.

“The informant can not therefore be permitted to give criminal colour to the proceedings,” the Court said.

It concluded that continuation of the criminal prosecution against Kishor would amount to an abuse of the process of court.

Advocates Eashita Raj and Anuj Kumar appeared for Kishor.

Standing Counsel M Nasrul Huda Khan and Harun Quareshi appeared for the State.

Advocates Sangeet Deokuliar and Akhilesh Kumar appeared for Gautam.

[Read Judgment]