Even as business process outsourcing (BPO) continues to be one of the fastest growing segment for India Inc, data privacy, network security and intellectual property rights (IPR) emerge as the biggest challenges. And, as the government intends to bring in amendments in the existing legislations dealing with the BPO industry — to inspire confidence among investors and silence the detractors — at a broader level, can there be a copyright on the list of clients and addresses maintained by professionals like lawyers, chartered accountants, BPO units, data management companies and others?
The Delhi High Court (HC) has replied the question in affirmative by stating that “The copyright exists not only in what is drafted and created but also in list of clients and addresses specially designed by an advocate or a law firm.” What it would mean in practice is that all companies maintaining a list of clients can claim copyright on such data and may sue employees for walking away with the list and telephone numbers of the clients under the provisions of the Copyright Act, 1957.
Citing the Berlington Hope Shopping case, the HC emphasised, “Customers’ list and information consisting of mail order, catalogues itself amount to confidential information.”
These observations were made by Delhi HC judge Sanjay Kishan Kaul recently while issuing an interim order in the Diljeet Titus vs Alfred A Adebare and Others case. The case, which is being contested by lawyers and being argued by advocates like Arun Jaitley, has also raised issues relating to various facets of copyright, distinction between contract of service and contract for service, and relationship between an advocate and law firm. Software forum Nasscom is reported to be closely studying the implications of the interim order that was given in favour of plaintiff Mr Titus.
The court, in its interim order, restrained the four defendants which included Nigerian national Alfred Adebare and lawyers Dimpy Mohanty, Alishan Naqvee and Seema Alhuwalia Jhingan from using the information allegedly stolen from the law firm Titus and Company. Later, the defendants sought an stay against the interim order of the Justice Kaul, but their contention was rejected by the division bench of the High court comprising Chief Justice Vijender Jain and Justice SN Agarwal. The final judgment, as and when delivered, will have implications for knowledge workers and entities in the IT sector.
What is more significant and may have implications for the business and industry is the treatment the court has accorded to the information about clients and solicitors which “to some extent is in public domain...appears in printed directories and everyone can use the same.”
Justice Kaul said, “Such a list is of great importance to an advocate or a law firm. The mere fact that defendants would have done work for such clients while being associated with the plaintiff would not give them the right to reproduce the list and take it away.”
In recent times, data security and protection, network security and intellectual property rights have been very strong concerns expressed by European and American firms about Indian BPOs. The government has set in motion the process of amending the IT Act, 2000 to include the data security concerns of the BPO sector. But it will take some time before this Act comes into place. On the other hand, Nasscom has decided to audit security practices of its members. This would enable Nasscom to devise some data security standards.
According to a Nasscom survey, IPR protection is perhaps the single most important policy for promoting investment in software development industries.In the absence of protection and enforcement of IPRs, a strong commercial software production industry will fail to become established and grow; investment in IT by businesses, households, government, and educational institutions will be slow.
Source : Financial Express, May 29, 2006