The Government of Kerala issued a notification u/s 70 of the Information Technology Act, 2000 (IT Act) declaring the FRIENDS application software as a protected system.
Sec. 70 of the IT Act reads as –
- The appropriate Government may, by notification in the Official Gazette, declare any computer resource which directly or indirectly affects the facility of Critical Information Infrastructure, to be a protected system.
- The appropriate Government may, by order in writing, authorize the persons who are authorized to access protected systems notified under sub-section (1).
- Any person who secures access or attempts to secure access to a protected system in contravention of the provisions of this section shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
- The Central Government shall prescribe the information security practices and procedures for such protected system.
The author of the application software filed a petition in the High Court against the said notification. He also challenged the constitutional validity of section 70 of the IT Act.
Findings of the court –
- There is no conflict between the provisions of Copyright Act and Section 70 of IT Act.
- Section 70 of the IT Act is not unconstitutional.
- While interpreting section 70 of the IT Act, a harmonious construction with Copyright Act is needed.
- Section 70 of the IT Act is not against but subject to the provisions of the Copyright Act.
- Government cannot unilaterally declare any system as "protected" other than "Government work" falling under section 2(k) of the Copyright Act on which Govt.'s copyright is recognized under Section 17(d) of the said Act.
- Hence, Court upheld the validity of both, section 70 of the IT Act, as well as the notification issued by the Kerala Government.