Information Technology Act, 2000 – s. 70(1) – Protected system – Issuance of Notification dated 27th December, 2002 u/s.70(1) – Declaration that the computer, computer system and computer network specified in the Schedule to the Notification to be “protected systems” – Challenge to, by the appellant on the ground that copyright in the e-governance programme developed by them for the Government vested in the appellant u/s. 17 of the 1957 Act and the Notification was an infringement of the said right – Case of the State that the appellant developed the software for Microsoft which had undertaken to make available the same to the State through 4th respondent-government agency, free of cost – High Court held that the Intellectual Property Rights in the software vested in the Government so as to entitle it to declare the same as a protected system u/s. 70(1) – Interference with – Held: Not called for – The power of declaration of a “protected system” may invade a copyright which may be vested in a private owner – However, such a situation is taken care of by the provisions contained in s. 2(k) of the 1957 Act which defines “Government work” and s.17(d) of the 1957 Act which vests in the Government, copyright in a government work as defined by s. 2(k) – Provisions of s.70(1) has to be read conjointly with s. 2(k) and s. 17 of the 1957 Act, in order to give due effect to the related provisions of two different enactments made by the legislature – Furthermore, appellant admitted/pleaded that it was entrusted by Microsoft to develop the software for which it received due consideration from Microsoft, if that be so, appellant would not be entitled to claim copyright in the application software u/s.17(a) of the 1957 Act – Copyright Act, 1957 – ss. 17(a), 2(k). Dismissing the appeal, the Court
HELD : 1.1 The High Court in the impugned order has correctly, held that the provisions of Section 70(1) of the Information Technology Act, 2000 has to be read conjointly with Section 2(k) and Section 17 of the Copyright Act, 1957 in order to give due effect to the related provisions of two different enactments made by the legislature. Section 70(1) of the I.T. Act as in force at the relevant point of time (at the time when the matter was under consideration in the High Court) or even after its amendment in 2009 bars access to a person to the system declared as a “protected system” without authorization from the Appropriate Government. Plainly read, the power of declaration of a “protected system” may invade a copyright which may be vested in a private owner. However, such a situation is taken care of by the provisions contained in Section 2(k) of the Copyright Act, 1957 which defines “Government work” and Section 17(d) of the copyright Act, 1957 which vests in the Government, copyright in a government work as defined by Section 2(k). The balance is struck by Section 17 between copyright pertaining to any other person and copyright vested in the Government in a “government work”. Section 70 of the I.T. Act, therefore, cannot be construed independent of the provisions of the Copyright Act; if Section 70 of the I.T. Act has to be read in conjunction with Section 2(k) and Section 17 of the Copyright Act 1957 the rigours that would control the operation of Section 70(1) of the I.T. Act are clearly manifested. [Para 19] [75-G-H; 76-A-D]
1.2 The amendment to Section 70(1) of the I.T. Act brought in by Act No. 10 of 2009 makes the power of declaration of protected system even more stringent by further circumscribing the power of declaration of protected system only in respect of a computer resource which directly or indirectly affects the facility of Critical Information Infrastructure, which is a defined expression in the I.T. Act. The amendment is not a first time introduction of parameters to govern the exercise of power under Section 70(1) of the I.T. Act. Rather, it is an attempt to circumscribe the power even further than what was prevailing under the pre-amended law, by narrowing down the ambit of “government work” so far as it is relatable to the facility of Critical Information Infrastructure, as defined under the Act. [Para 20] [76-E-G]
1.3 The challenge made by the appellant before the High Court insofar as the Notification dated 27th December, 2002 is concerned was founded on a claim of copyright in the FRIENDS application software. The said claim, ex facie , is not tenable in the light of the provisions contained in Section 17(a) of the Copyright Act and the admitted/pleaded case of the appellant in the writ petition to the effect that it was entrusted by Microsoft to develop the software for which it received due consideration from Microsoft. If that be so, on the appellant’s own pleadings in the writ petition, it would not be entitled to claim copyright in the FRIENDS application software under Section 17(a) of the Copyright Act. Whether under clause 10 (under the head “Role of Government of Kerala”) of the Memorandum of Understanding between Total Solution Providers for E-Governance and Government of Kerala, the State would have a claim of copyright in view of Section 17(a) of the Copyright Act is altogether a different question which has no bearing on the claim of the appellant to copyright in the FRIENDS application software. In the present proceedings, the only point for adjudication is the claim of the appellant, as the developer of the application software, to be the first author of the said work so as to vest in him/it a copyright under the provisions of Section 17 of the Copyright Act, 1957, a claim which is palpably unfounded both on the basis of the provisions of Section 17(a) of the Copyright Act and under clause 10 (under the head “Role of Government of Kerala”) of the Memorandum of Understanding between Total Solution Providers for E-Governance and Government of Kerala. There is no ground for interference with the orders passed by the High Court. [Para 22] [76-H; 77-A-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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