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3 It is the Plaintiffs' case that in 2008, the Defendant approached the Plaintiffs for preparation of a web based ERP software for 'automation' of the marketing and operations part of their business of insurance broking. After considering the Plaintiffs' proposal, the Defendant commissioned the Plaintiffs for coding of a customized software for use of the Defendant. The Plaintiffs claim to have, as part of this software development, between November 2008 and November 2013, created a unique software for the Defendant integrating fourteen feature-based modules. It is their case that out of these fourteen modules, three modules were specifically developed by the Plaintiffs for the Defendant, whilst the remaining eleven modules were developed and customized using the Plaintiffs' existing Source Code Library. (The customized unique software thus prepared for the Defendant is hereinafter referred to as the "impugned software".) It is further the Plaintiffs' case that after the Defendant started using the impugned software, on the pretext of doing load testing of the software, the Defendant procured from the Plaintiffs the source code, the technical details, software architecture and other details in respect of certain portions of the impugned software. The Plaintiffs claim to have shared with the Defendant the source code of requested portions in good faith, which included the confidential architecture solely designed and developed by the Plaintiffs and used in the impugned software. It is the grievance of the Plaintiffs that the Defendant is now attempting Pg 2 of 11 nms.1290.2014.doc to disclose, share and deal in the source codes so disclosed in confidence without permission or licence from the Plaintiffs in violation of the Plaintiffs' copyright as well as in breach of confidentiality. So also, though the Plaintiffs have not disclosed or delivered the source code of the proprietary software of "CRATOR" or "SEEQUER" which is deployed within the impugned software to the Defendant, the Plaintiffs apprehend that the Defendant may obtain the source code or architecture of the software by reverse engineering and then misuse the same. The Plaintiffs have, therefore, approached the Court with a case of copyright infringement. The Plaintiffs also claim to be entitled to protection of confidentiality.

5 The case really pertains to the impugned software which is customized for the Defendant. In other words, the only question that really falls for the consideration of the Court is whether the Plaintiffs have made out any case of infringement of copyright and/ or breach of confidentiality in respect of the impugned software including its source code. The contention of the Plaintiffs is that they are authors of the impugned software and own copyright in it. Though the Plaintiffs were commissioned and have customized this software for the Defendant at or for a fee, the Plaintiffs would submit, the literary work (forming part of the source code) was not made in the course of the Plaintiffs' employment under any contract of service. Secondly, it is submitted that what the Plaintiffs created for the Defendant was a customized software, and though the Defendant is entitled to this software, the source code for the software does not belong to the Defendant and very much forms part of the Plaintiffs' property. It is claimed that this source code was parted with by the Plaintiffs to the Defendant in Pg 3 of 11 nms.1290.2014.doc circumstances of confidence and the Defendant cannot breach this confidence.

Pursuant to a reminder sent on 4 March 2011, the Plaintiffs confirmed by an email of the same date that they had consulted their lawyers on the draft, who had advised them against executing any backdated agreement, since it would bind them. The Plaintiffs did confirm in this email that they had not installed any copy of the impugned software anywhere else. Later, by an email dated 13 October 2011, the Defendant sent a draft agreement which was said to "document the past" and which was "actual". Clause 3.1 of this agreement acknowledges that "the services being rendered by it (i.e. Plaintiff No.1) are on a "work for hire" basis" and that all intellectual property rights with respect to such services including the intellectual property in the software "shall vest solely and exclusively with the company" (i.e. the Defendant) and the Plaintiffs "shall have no right, title or interest over the same". Consequential provisions in support of such exclusive right of the Defendant are to be found in the clauses following clause 3.1, namely, clauses 3.2 and 3.3. There is no caveat to this by the Plaintiffs. Thus, though this agreement never came to be executed, it is quite clear that the Defendant had not only asserted ownership of copyright in the impugned software, but claimed that such ownership was part of the original understanding and that the Plaintiffs did not contest this at any time contemporaneously. Thereafter, a new MOU was forwarded by the Defendant with its email of 4 November 2011. This MOU contained a provision that whilst the Plaintiffs own the rights for background technologies used for development of the software, the Defendant "would own this software and the intellectual property rights (IPR) of this software would be with Medimanage (the Defendant) alone". This MOU was sent back with minor changes by the Plaintiffs, hoping to "sign off today". This draft, though it sought to delete the reference to the ownership of intellectual property rights, acknowledged the ownership of the Defendant of the software and simultaneously provided that in the event of termination of the contract between the parties, the Plaintiffs "should handover the original software source code to Medimanage and cooperate with them for smooth transition of change of vendor". The parties finally signed a Memorandum Pg 7 of 11 nms.1290.2014.doc of Understanding ('MOU') which had, in keeping with the correspondence of the parties outlined above, the following clauses acknowledging the Defendant's ownership of the software:

10 It is also the Plaintiffs' case in support of their claim in confidentiality that, on the pretext of doing load testing of the impugned software, the Defendant procured from the Plaintiffs the source code or software architecture in respect of certain portions of the impugned software. It is submitted that such source code was shared by the Plaintiffs with the Defendant in good faith and in circumstances of confidence; and the Defendant is attempting to disclose, share and deal in such source code or architecture without permission or licence from the Plaintiffs. In the first place, the identity of the source code purportedly disclosed has not been established by the Plaintiffs. The Plaintiffs have relied on correspondence by way of email between the parties dated 24 June 2011, 25 June 2011, 27 June 2011, 28 June 2011 and 1 July 2011, in this behalf. (Para 18 of the plaint read with Exhibit 'F'). The first email from this series of mails (email dated 24 June 2011) is from a contractor engaged by the Defendant for load testing, calling for certain details, which does suggest that certain structural details concerning the impugned software were called for by the former from the Defendant for load testing work. This email is followed by the Defendant's email of 25 June 2011 to the Plaintiffs, requisitioning the details required. In reply, the Plaintiffs by their email of 27 June 2011 seem to have suggested some steps to be taken (rather than parting with the structural details called for) for the purpose of accomplishing the task. This email is followed by an email from the Defendant of 27 June 2011, inquiring as to whether the steps suggested by the Plaintiffs would be sufficient for the task on hand. Then follows the email from the third party contractor to the Defendant, again of 27 June 2011, calling for some other details. This request seems to have been forwarded by the Defendant to the Plaintiffs on the same day. The response of the Plaintiffs is by an email addressed to a concerned person, probably suggesting some alternative to achieve the desired load testing. Finally, we have the email of the Plaintiffs of 1 July 2011, forwarding some details regarding certain servers and designs. It cannot possibly be deduced from this correspondence that the source code or Pg 9 of 11 nms.1290.2014.doc software architecture of the entire impugned software was shared by the Plaintiffs with the Defendant. The sharing of the source code or software architecture claimed by the Plaintiffs is a matter of dispute and this dispute does not get resolved by the material produced before the Court. The evidence is inadequate even to draw any prima facie conclusion about the fact of the Plaintiffs having parted with the source code of the impugned software to the Defendant through the above referred to correspondence. The next act of sharing of the source code is said to have been done in February 2013 (para 23 of the plaint). The allegation is that in February 2013, the Defendant requested the Plaintiffs for the source code of the Defendant's website, administration panel of the impugned software and one 'DLL File' and the Plaintiffs shared the source code of the "above requested portions" of the impugned software except the property 'DLL File'. Even this is disputed by the Defendant. There is nothing to show that this was done. But more importantly, this at best shows that the source code of 'some portions' of the impugned software were purportedly divulged to the Defendant ( without any proof thereof). There is not even an alleged case that the entire source code of the impugned software was divulged. There is nothing to suggest that any such purported divulgance was in circumstances of confidence. Besides, quite apart from establishing the parting with of the confidential source code, the Plaintiffs have been unable to show how the Defendant is making use of any of the supposed confidential information without the Plaintiffs' authority or licence. The allegation in this behalf seems completely to be a shot in the dark. The Plaintiffs cannot get any injunctive relief on the basis of this material.