B N FIROS Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellant/petitioner approached this Court for declaring that Section 70 of the Information Technology Act, 2000 (hereinafter referred to as 'the Act') is unconstitutional and unenforceable and also for issuance of a writ of certiorari to quash Ext.P10 notification issued by the Government of Kerala under Sub-section (1) of Section 70 of the Act (Central Act No. 21 of 2000). According to the appellant, while disposing of the Writ Petition, the learned single Judge did not enter into any finding regarding the constitutional validity of Section 70 of the Act though it upheld ExtP10 notification issued by the State Government. The learned single Judge also directed to withdraw the suit for declaration of copyright and for injunction filed against the petitioner though the learned single Judge held that the suit is maintainable. The court also directed respondents 1 to 4 to withdraw the criminal complaint filed against the petitioner if the petitioner accepts the judgment and informs the same to the second respondent in writing within a period of one year from the date of judgment. The petitioner did not accept the judgment, but, challenged the same before this Court.

(2.) The facts of this case are as follows: Government of Kerala, as part of IT implementation in Government departments, conceived a project idea of "FRIENDS" (Fast, Reliable, Instant, Efficient Network for Disbursement of Services). The project envisaged is development of a software for single window collection of bills payable to Government, local authorities, various statutory agencies, Government Corporations etc. towards tax, fees, charges for electricity, water, etc. A person by making a consolidated payment in a computer counter served through "FRIENDS" system can discharge all his liabilities due to the Government, local authorities and various agencies. The first respondent Kerala State Government entrusted the work of developing the "FRIENDS" software with the fourth respondent. Fourth respondent is a registered society under the control of Government as the Total Solution Provider (TSP). The fourth respondent, in turn, entrusted the work of development of pilot project to be set up at Thiruvananthapuram to the petitioner. The application-software "FRIENDS" was first established at Thiruvananthapuram, free of cost, and since the project was successful, Government decided to set up the same in all other 13 district centres. By Ext.P6, fourth respondent entered contract with the petitioner for setting up and commissioning "FRIENDS" software system in 13 centres all over Kerala for providing integrated services to the customers through a single window for a total consideration of Rs. 13 lakhs. Pursuant to Ext.P6 agreement, petitioner set up FRIENDS service centres in all the 13 centres and they were paid the agreed remuneration. After successful completion of the project, there was a subsequent agreement between the fourth respondent and the petitioner (Ext.P9 for continued technical support and for maintenance of system) : Extended period was over. Disputes arose between the petitioner and Government with regard to Intellectual Property Right (IPR) in the software developed, namely, FRIENDS. There is no dispute that IPR software is recognised in law that copyright can be claimed for IPR in the software in view of the amendment in the Copyright Act, 1957 in 1994. When respondents 1 to 4 arranged to modify the software "FRIENDS" to suit its further requirements through another agency, petitioner alleged violation of copyright and petitioner filed criminal complaint against respondents 1 to 4 which was later referred. A counter case was filed by the State and fourth respondent against the petitioner and charge sheet was issued and a crime was registered as Crime No. 119 of 2003 and is pending before the Additional Chief Judicial Magistrate's Court, Thiruvananthapuram. Petitioner filed an application for copyright before the Registrar of Copyright and the first respondent filed a suit before the District Court, Thiruvananthapuram under Sections 60 and 61 of the Copyright Act against the petitioner alleging infringement of copyright and for declaration and injunction. Since the suit is pending in the civil court, the Registrar of Copyright left the matter to be decided by the civil court and rejected petitioner's application for registration of copyright in the "FRIENDS" software applied for by him leaving freedom to any party to apply for registration of copyright after the civil court decides the issue. First respondent, State of Kerala, also issued separate notification, Ext.P10, under Section 70 of the Act declaring, among other items, that the "FRIENDS" software installed in the computer system and computer network established in all centres in Kerala as a 'protected system' for the purpose of the said Act. It is true that the criminal case against the petitioner is pending before the Chief Judicial Magistrate's Court, Thiruvananthapuram and suit filed by the first respondent against the petitioner is pending in the District Court, Thiruvananthapuram. This Writ Petition was filed challenging Section 70 of the Act. It is also contended that Ext.P10 circular issued is arbitrary, discriminatory and violative of Article 19(1)(g) of the Constitution of India and against the statutory right conferred under Section 17 of the Copyright Act.

(3.) Before going into the contentions raised, we may extract Section 70 of the Information Technology Act, 2000 as follows: