IMPORTANT POINT
Power to declare “protected system" may invade a copyright vested in a private owner.

JUDGMENT

Ranjan Gogoi, J.

The appellant-B.N. Firos - proprietor of Comtech IT Solutions, Thiruvananthapuram had filed a Writ Petition challenging a Notification dated 27th December, 2002 issued under Section 70(1) of the Information Technology Act, 2000 (hereinafter referred to as "I.T. Act") declaring the computer, computer system and computer network specified in the Schedule to the Notification to be "protected systems" under the I.T. Act. The vires of Section 70 of the I.T. Act itself was also challenged. The Writ Petition was dismissed. The said order of dismissal has been affirmed in writ appeal by a Division Bench of the High Court and the review filed there against has also been dismissed. Aggrieved, this appeal(s) has been filed.

2. The brief facts that will be required to be noticed are as follows:

In the writ/original petition filed by the appellant before the High Court it is stated that the appellant is the proprietor of Comtech IT Solutions, an Information Technology concern which is a member of Microsoft Developer Forum, a professional group of developers technically supported and guided by the Microsoft Corporation (India) Pvt. Ltd.

3. In the year 1999, the 1st respondent - State of Kerala through the 4th respondent - Centre for Development of Imaging Technology (C-DIT), Thiruvanthapuram, a Total Solution Provider (TSP), had conceptualized a single window multiple agency bill collection system. The project was called "FRIENDS" (i.e. Fast, Reliable Instant, Efficient, Network for Disbursement of Services). According to the appellant - writ petitioner, Microsoft Corporation of India (Pvt.) ltd. (hereinafter referred to as "Microsoft") had offered to provide the Application Software and System Software free of cost for the pilot project. The appellant - writ petitioner, being a member of the Microsoft Developer's Forum, was required by Microsoft to carry out the system study and to develop the pilot project for the "FRIENDS" project.

4. After completion of the preliminary work, Microsoft placed orders with the appellant on 23rd May, 2000 pursuant to which the Software developed by the appellant was handed over to the 4th respondent and the Software was implemented as a pilot project at the first FRIENDS Centre at Palayam, Thiruvanthapuram in June 2000. As the said project was a success, the 1st respondent decided to extend the same to its 13 District Centres.

5. By a communication dated 31st January, 2001, the 4th respondent informed the appellant that the FRIENDS project, for which the appellant had developed the Application Software free of cost as part of the developers forum agreement with Microsoft, has been successful and the Government has decided to establish FRIENDS Integrated Citizens Service Centres in all the other 13 districts of the State for which the respondent No.4 would like to associate with the appellant for customization of the FRIENDS application software. Pursuant thereto an Agreement cum Memorandum of Understanding dated 19th February, 2001 was entered into between the appellant and the 4th respondent.

6. According to the appellant as the 4th respondent was attempting to transfer some of the essentials of the FRIENDS application software to another concern, namely, M/s Stanhop Technology, a criminal proceeding was instituted by the appellant against said M/s Stanhop Technology. Apprehending further attempts, an application for registration of his copyright in the FRIENDS application software was also filed by the appellant before the Registrar of Copyrights, New Delhi.

7. On the other hand, the 4th respondent had filed a suit i.e. O.S. No.8 of 2002 before the District Court, Thiruvananthapuram seeking a declaration that the 4th respondent is the exclusive owner of the copyright and the sole owner of the Intellectual Property Rights of the FRIENDS application software. In view of the aforesaid suit for infringement filed by the 4th respondent, the Registrar of Copyright rejected the appellant's appli