B.N. FIROS versus STATE OF KERALA & ORS.

Citation: [2018] 3 S.C.R. 68 · Decided: 27-03-2018 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Dismissed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 3 S.C.R.
B.N. FIROS
v.
STATE OF KERALA & ORS.
(Civil Appeal No. 79 of 2008)
MARCH 27, 2018
[RANJAN GOGOI AND
MOHAN M. SHANTANAGOUDAR, JJ.]
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).
  [2018]  3 S.C.R. 68
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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
B.N. FIROS v. STATE OF KERALA & ORS.
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“government work” so far as it is relatable to the facility of Critical
Information Infrastructure, as defined under t

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