Gramophone Company of India Ltd. Vs.
Birendra Bahadur Pandey & Ors [1984] INSC 39 (21 February 1984)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)
CITATION: 1984 AIR 667 1984 SCR (2) 664 1984
SCC (2) 534 1984 SCALE (1)338
ACT:
Copyright Act, 1955-ss. 51 and 53-word
`import'-meaning of. Character of order under s. 53-quasi - judicial.
International Law-Whether becomes part of
municipal law without aid of municipal statute-Whether override municipal law
in case of conflict.
International Law-Rule regarding right of
land-locked states of innocent passage of goods across another state.
Practice-Courts must interpret national law
in a way so as to avoid confrontation with international law.
Interpretation-Rule of-While interpreting
words of ordinary parlance reference to dictionaries of no avil.
HEADNOTE:
By treaty and by international convention,
India allows transit facilities to Nepal, its neighbour and a land-locked
country. A company based in Kathmandu, Nepal imported a consignment of
pre-recorded cassettes from Singapore which was awaiting its dispatch to Nepal
at Calcutta Port. As the 665 appellant company suspected those cassettes to be
unauthorised reproductions of its records and cassettes, the import of which
into India was prohibited, the appellant- company moved the Registrar of
Copyrights for action under s.53 of the Copyright Act, 1957 which enables the
Registrar, after making such enquiries as he deemed fit, to order that copies
made out of India of a work which if made in India would infringe copyright,
shall not be imported. As the Registrar did not take expenditious action, the
appellant- company moved the High Court by a writ petition. A single Judge made
an interim order permitting the appellant-company to inspect the consignment
and if any of the cassettes were found to have infringed the appellant's
copyright, they were to be kept apart until further orders of the Registrar. The
Registrar was directed to deal with the application of the appellant-company in
accordance with law. The consignee preferred an appeal against this order of
the single Judge.
A Division Bench of the High Court allowed
the appeal and dismissed the writ petition of the appellant-company. The
Division Bench held that there was no importation when the goods entered India
en route to Nepal. The Division Bench was of the view that the word `import'
did not merely mean bringing the goods into India, but comprehended something
more, that is, "incorporating and mixing, or mixing up of the goods
imported with the mass of the property in the local area". The company
obtained special leave to appeal.
The questions which arose were : (i) whether
international law is, of its own force, drawn into the law of the land without
the aid of a municipal statute, (ii) whether, so drawn, it overrides municipal
law in case of conflict; (iii) whether there is any well established rule of
international law on the question of the right of land-locked states to
innocent passage of the goods across the soil of another state; and (iv) what
is the meaning of the word `import' used in s.53 of the Copyright Act.
Allowing the appeal, ^ HELD :
On questions (i) & (ii).
There can be no question that nations must
march with the international community and the municipal law must respect rules
of international law even as nations respect international opinion. The comity
of nations requires that rules of international law may be accommodated in the
municipal law even without express legislative sanction provided they do not
run into conflict with Acts of Parliament. But when they do run into such
conflict, the sovereignty and the integrity of the republic and the supremacy
of the constituted legislatures in 666 making the laws may not be subjected to
external rules except to the extent legitimately accepted by the constituted
legislatures themselves. The doctrine of incorporation also recognises the
position that the rules of international law are incorporated into national law
and considered to be part of the national law, unless they are in conflict with
an Act of Parliament. Comity of nations or no, municipal law must prevail in
case of conflict. National courts cannot say yes if Parliament has said no to a
principle of international law. National courts will endorse international law
but not if it conflicts will national law.
National courts being organs of the national
state and not organs of international law must perforce apply national law if
international law conflicts with it. But the courts are under an obligation
within legitimate limits, to so interpret the municipal statute as to avoid
confrontation with the comity of nations or the well established principles of
international law. But if conflict is inevitable, the letter must yield. [673
E-H] Per Lord Danning MR in Trend text Trading Corpn. v.
Central Bank, [1977] I All E.R. 881; West
Rand Central Gold Mining Co. v. The King, [1905] 2KB 391; Lauterpacht in
International Law (General Works); Latham CJ in Politics v.
The Common wealth 70 Commonwealth Law Reports
60; Tractoro- export, Mascow v. M/s. Tarapore & Company and Anr, [1970] 3
SCR 53 referred to.
On question (iii).
As the leading authorities on international
law expressed divergent views on the question of the transit rights of
land-locked countries, the result has been that the land-locked countries have
to rely on bilateral, regional or multi-lateral agreements for the recognition
of their rights. They very existence of innumerable bilateral treaties, while
on the one hand it raises a presumption of the existence of a customary right
of transit, on the other it indicates the dependence of the right on agreement.
The most recent 1965 Convention on Transit Trade of Land-Locked States, to
which both Nepal and India are signatories, while providing for freedom of
transit for the passage of goods between the land-locked state and the sea,
across the territory of a transit state emphasize the need for agreement
between the land-locked country and the transit country. The bilateral Treaty
of Trade and Treaty of Transit entered into between India and Nepal in order to
expand trade between the two countries in practice mean a guarantee to Nepal to
permit free and unhampered flow of goods needed by Nepal from India and a
guarantee of freedom of transit for goods originating from outside India across
the territory of India to reach Nepal. But the Convention on Transit Trade of
Land-locked States and the Treaties between the two countries, leave either
country free to impose necessary restrictions for the purpose of protecting
industrial, literary or artistic property and preventing false marks, false
indications of origin or other methods of unfair competition in order to
further other general conventions.
It is clear that for this purpose, it is not
necessary that the land-locked country should be a party to the general
conventions along with the transit country. The interpretation placed by John
H.B. Fried in the Indian Journal of international law that the provisions of
the 1965 Convention permit the States of transit to enforce, say a Copyright or
trade mark convention even if, for example, neither the country of origin nor
of destination is party to it appears to be a correct interpretation. [675 B-H]
An artistic, literary or musical work is the brain- child of its author, the
fruit of his labour, and so, considered to be his property. So highly is it
prized by all civilised nations that it is thought worthy of protection by
national laws and international Conventions relating to Copyright. The
International Convention for the protection of literary or artistic works first
signed at Berne on 9th September, 1886 and finally revised at Paris in 1971
provided for protection to the authors of literary and artistic works. The
Universal Copyright Convention first signed at Geneva on 6th September 1952 and
revised in Paris in 1971 requires the contracting states to provide for the
adequate and effective protection of the rights of authors and other copyright
proprietors in literary, scientific and artistic works including writings,
musical, dramatic and cinematograph works and paintings engraving and
sculpture.
[684 G-H] On question No. (iv) The word
`import' is not defined in the Copyright Act though it is defined in the
Customs Act. But the same word may mean different things in different
enactments and in different contexts. It may even mean different things at
different places in the same statute. It all depends on the sense of the
provision where it occurs. Reference to dictionaries is hardly of any avail
particularly in the case of words of ordinary parlance with a variety of
well-know meanings. Such word take colour from the context. Appeal to the Latin
root won't help. The appeal must be to the sense of the statute. [689 C-D] The
submission that where goods are brought into the country not for commerce, but
for onward transmission to another country, there can, in law, be no
importation, is not acceptable. In the first place, the language of s. 53 does
not justify reading the words `imported for commerce' for the words `imported;
Nor is there any reason to assume that such was the object of the legislature.
While interpreting the words `import' in the Copyright Act, one must take note
that while the positive requirement of the Copyright Conventions is to protect
copyright, negatively 668 also, the Transit Trade Convention and the bilateral
Treaty make exceptions enabling the tranait state to take measure to protect
Copyright. If this much is borne in mind, it becomes clear that the word `import'
in s. 53 of the Copyright Act cannot bear the narrow interpretation sought to
be placed upon it to limit it to import for commerce. It must be interpreted in
a sense which will fit the Copyright Act into the setting of the International
Conventions. [690 B-E] The word `import' in seces. 51 and 53 of the Copyright Act
means bringing into India from outside India', that it is not limited to
importation for commerce only, but includes importation for transit across the
country. This interpretation, far from being inconsistent with any principle of
International Law, is entirely in accord with International Conventions and the
Treaties between India and Nepal.[691 H, 692A] The High Court thought that
goods may be said to be imported into the country only if there is an
incorporation or mixing up of the goods imported with the mass of the property
in the local area. In other words the High Court relied on the Original Package
Doctrine' as enunciated by Chief Justice Marshall in Brown v. State of Maryland
6 L, Ed. 78. Reliance was placed by the High Court upon the decision of this
Court in the Central India Spinning and Weaving & Manufacturing Co. Ltd.
The Empress Mills, Nagpur v. The Municipal Committee, Wardha [1958] SCR 1102.
That was a case which arose under the C.P. and Berar Municipalities Act and the
question was whether the power to impose "a terminal tax goods or animals
imported into or exported from the limits of a municipality" included the
right to levy tax on goods which `were neither loaded or unloaded at Wardha but
were merely carried across through the municipal area'.
We are afraid the case is really not of any
guidance to us since in the context of a `terminal tax' the words `imported and
exported' could be construed in no other manner than was done by the Court. We
must however say that the `original package doctrine' on which reliance was
placed was expressly disapproved first by the Federal Court in the Province of
Madras v. Boddu Paidanna : [1942] FCR 90 and again by the Supreme Court in the
State of Bombay v. F.N. Balsara, [1951] SCR 682. [690 G-H, 691 A-E] An order
made under s. 53 of the Copyright Act is quasi-judicial. The Registrar is not
bound to make an order under s. 53 of the Copyright Act so soon as an
application is presented to him by the owner of the Copyright. He has naturally
to consider the context of the mischief sought to be prevented. He must
consider whether the copies would infringe the Copyright if the copies were
made in India. He must consider whether the applicant owns the copyright or the
duly authorised agent of the Copyright. He must hear those claiming to be
affected if an order is made and consider any contention that may be put
forward as an excuse for the import. He may consider any other relevant
circumstance. Since all legitimate defences are upon and the enquiry is
quasi-judicial, no one can seriously complain.
[692 E-G] 669
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 3216- 3218 of 1983.
Appeals by Special leave from the Judgment
and Order dated the 10th February, 1983 of the Calcutta High Court in Original
Order Nos. 374-376 of 1982.
Soli J. Sorabjee, Harish N. Salve, Sudip to
Sarkar & D.N. Gupta, for the Appellant.
Santi Bhushan, S.K. Roy Chowdhury and H.S.
Parihar for Respondent No. 1 in CA. 3216 of 1983.
B. Gupta, S.K. Roy Chowdhary and H.S. Parihar
for Respondent No. 1. in CA. 3217-18 of 1983 P.A. Francis, R.N. Poddar for the
Respondent.
K. Parasaran, Attorney General, Gopal
Subramaniam and C. V. Subba Rao in response to notice.
G.S. Sanghi, Shankar Mitra and P. Sinha for
Intervener- Oceanic Shipping Agency (P.) Ltd.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. Nepal is our neighbour.
Unfortunately Nepal is land-locked. Nepal's
only access to the sea is across India. So, as one good neighbour to another
with a view to `maintain, develop and strengthen the friendly relations between
our two countries, by treaty and by International Convention, we allow a right
of innocent passage in order to facilitate Nepal's international trade.
One of the questions before us is the extent
of this right :
Does the right cover the 670 transit of goods
which may not be imported into India? May goods which may not be brought into
India be taken across Indian territory? What does "import" mean, more
particularly what does "import" mean in Sec. 53 of the Copyright Act?
Can an unauthorised reproduction of a literary, dramatic, musical or artistic
work or a record embodying an unauthorised recording of a record (which, for
short, adopting trade parlance, we may call a pirated work), whose importation
into India may be prohibited, but whose importation into Nepal is not
prohibited, be taken across Indian territory to Nepal? These are some of the
questions which arise for consideration in this appeal.
The questions have arisen this way: The
appellant, the Gramophone Company of India Limited, is a well-known
manufacturer or musical records and cassettes. By agreement with the performing
artistes to whom royalties are paid, the appellant company is the owner of the
Copy right in such recordings. The appellant received information from the
Custom. Authorities at Calcuttath at a consignment of prerecorded cassettes
sent by Universal Overseas Private Ltd. Singapore to M/s. Sungawa Enterprises,
Kathmandu, Nepal, had arrived at Calcutta Port by ship and was awaiting
despatch to Nepal. The appellant learnt that a substantial number of cassettes
were pirated works', this fact having come to light through the broken condition
of the consignment which was lying in the Calcutta docks. Basing upon the
information received, the appellant sought the intervention of the Registrar of
Copyrights for action under Sec. 53 of the Copyright Act, 1957. This provision
enables the Registrar, after making such enquiries as he deems fit, to order
that copies made out of India of a work which if made in India would infringe
copy right, shall not be imported. The provision also enables the Registrar to
enter any ship, dock or premises where such copies may be found and to examine
such, copies. All copies in respect of which an order is made prohibiting their
import are deemed to be goods the import of which is prohibited or restricted
under Sec. 11 of the Customs Act, 1962. The provisions of the Custom Act, are
to have effect in respect of those copies.
All copies confiscated under the provisions
of the said Act are not to vest in the Government, but to be delivered to the
owner of the copy right in the work. As the Registrar was not taking
expeditious action on the application of the appellant and as it was
apprehended that the pirated cassettes would be released for transportation to
Nepal, the appellant filed a writ application in the Calcutta High Court
seeking a writ in the nature of Mandamus to compel the Registrar to pass an
appropriate order under Sec. 53 of the Copyright Act and to prevent release 671
of the cassettes from the custody of the customs authorities. The learned
single judge of the Calcutta High Court, on the request of the appellant,
issued a Rule Nisi and made an interim order permitting the appellant to
inspect the consignment of cassettes and if any of the cassettes were thought
to infringe the appellant's copyright, they were to be kept apart until further
orders of the Registrar. After causing the necessary inspection to be made, the
Registrar was directed to deal with the application under Sec. 53 of the Copyright
Act in accordance with law after hearing interested parties. The Registrar was
directed to deal with the application within eight weeks from the date of the
High Court's order. In the event of any of the cassettes held back by the
appellant being found not to infringe any provision of the Copy right Act, the
appellant was to pay damages as assessed by the Court.
Against the learned Single Judge's order, the
consignee preferred an appeal under clause 15 of the Letters Patent. A Division
Bench of the Calcutta High Court held that the word 'import' did not merely
mean bringing the goods into India, but comprehended something more, that is,
"incorporating and mixing, or mixing up of the goods imported with the
miss of the property in the local area". The learned judges thought it
would be wrong to say that there was importation into India, the moment the
goods crossed the Indian customs barrier. Keeping in view the treaties with
Nepal, the Division Bench took the view that there was no importation when the
goods entered India en route to Nepal. The appeal was, therefore, allowed and
the writ petition filed by the present appellant was dismissed. And so, the
writ petitioner in the High Court has appealed to us under 136 of the
Constitution.
First, we shall examine if there is any
mandate of international law or if the rules of international law afford us any
guidance and if such mandate or guidance is perceptive under Indian law. Two
questions arise, first, whether international law is, of its own force, drawn
into the law of the land without the aid of a municipal statute and, second,
whether, so drawn, it overrides municipal law in case of conflict. It has been
said in England that there are two schools of thought, one school of thought
propounding the doctrine of incorporation and the other, the doctrine of
transformation.(') According to the one, rules of international law are
incorporated into the law of the land automatically and considered to be part
of the law of the land unless in 672 conflict with an Act of Parliament.
According to the other, rules of International law are not part of the law of
the land, unless already so by an Act of Parliament, judicial decision or long
established custom. According to the one whenever the rules of international
law changed, they would result in a change of the law of the land along with
them, 'without the aid of an Act of Parliament. According to the other, no such
change would occur unless those principles are 'accepted and adopted by the
domestic law'. Lord Danning who had once accepted the transformation doctrine
without question, later veered round to express a preference for the doctrine
of incorporation and explained how courts were justified in applying modern
rules of international law when old rules of international law changed. In
fact, the doctrine of incorporation, it appears, was accepted in England long
before Lord Danning did so. Lord Danning himself referred to some old cases.
Apart from those, we may refer to West Rand Central Gold Mining Co. v. The
King(1) where the court said:
"It is quite true that whatever has
received the common consent of civilized nations must have received the assent
of our country, and that to which we have assented along with other nations in
general may properly be called international law, and as such will be
acknowledged and applied by our municipal tribunals when legitimate occasion
arises for those tribunals to decide questions to which doctrines of
international law may be relevant".
Lauterpacht in International Law (General
Works) refers to the position in Germany, France, Belgium and Switzerland and
says it is the same. He quotes what a German Court said to meet an argument
that the role of customary international law conflicted with Art.24 of the
German Code of Civil Procedure. The court had said, "The legislature of
the German Reich did not and could not intend any violation of generally
recognised rules of international law, when enacting Art. 24 of the German Code
of Civil Procedure".
Lauterpacht refers to another German case
where the argument that 'there ought not to be a direct recourse to the law of nations,
except in so far as there has been formed a German customary law' was rejected
with the statement, "The contention of the Creditor that international law
is applicable only in so far as it has been adopted by German Customary law,
lacks foundation in law. Such a legal maxim would, more- 673 over, if generally
applied, lead to the untenable result that in the intercourse of nations with
one another, there would obtain not a uniform system-international law-but a
series of more or less diverse municipal laws". Lauterpacht summarises the
position this way:- "While it, is clear that international law may and
does act directly within the State, it is equally clear that as a rule that
direct operation of international law is, within the State subject to the
overriding authority of municipal law. Courts must apply statutes even if they
conflict with international law. The supremacy of international law lasts, pro
foro interno, only so long as the State does not expressly and unequivocally
derogate from it. When it thus prescribes a departure from international law,
conventional or customary, judges are confronted with a conflict of
international law and municipal law and, being organs appointed by the State,
they are compelled to apply the latter".
There can be no question that nations must
march with the international community and the Municipal law must respect rules
of International law even as nations respect international opinion. The comity
of Nations requires that Rules of International law may be accommodated in the
Municipal Law even without express legislative sanction provided they do not
run into conflict with Acts of Parliament. But when they do run into such
conflict, the sovereignty and the integrity of the Republic and the supremacy
of the constituted legislatures in making the laws may not be subjected to
external rules except to the extent legitimately accepted by the constituted
legislatures themselves. The doctrine of incorporation also recognises the
position that the rules of international law are incorporated into national law
and considered to be part of the national law, unless they are in conflict with
Act of Parliament. Comity of Nations or no, Municipal Law must prevail in case
of conflict. National Courts cannot say yes if Parliament has said no to a
principle of international law. National Courts will endorse international law
but not if it conflicts with national law. National courts being organs of the
National State and not organs of international law must perforce apply national
law if international law conflicts with it. But the Courts are under an
obligation within legitimate limits, to so interpret the Municipal Statute as
to avoid conformation with the comity of Nations or the well established
principles of International law. But if conflict is inevitable, the latter must
yield.
674 The proposition has been well stated by
Latham CJ in Politics v. The Commonwealth(1):
"Every statute is to be interpreted and
applied, as far as its language admits, as not to be inconsistent with the
comity of nations or with the established rules of international law ..........
It must be held that legislation otherwise within the power of the.
Commonwealth Parliament does not become invalid because it conflicts with a
rule of international law, though every effort should be made to construe
Commonwealth statutes so as to avoid breaches of international law and of
international comity. The question, therefore, is not a question of the power
of the Commonwealth Parliament to legislate in breach of international law, but
is a question whether in fact it has done so".
The Supreme Court of India has said
practically the same thing in Tractor export, Moscow v. M/s Tarapore &
Company and Anr.(2) "Now, as stated in Halsboury's Laws of England, Vol.
36, page 414, there is a presumption that Parliament does not assert or assume
jurisdiction which goes beyond the limits established by the common consent of
nations and statutes are to be interpreted provided, that their language
permits, so as not to be inconsistent with the comity of nations or with the
established principles of international law. But this principle applies only
where there is an ambiguity and must give way before a clearly expressed
intention. If statutory enactments are clear in meaning, they must be construed
according to their meaning even though they are contrary to the comity of
nations or international law".
The observations show that the court was only
concerned with a principle of interpretation, but, by, implication, it may be
possible to say that the court preferred the doctrine of incorporation;
otherwise the question of interpretation would not truly arise. What has been
675 said in the Tractoroexport case is entirely consistent with what we have
said earlier.
Is there any well established principle of
international law on the question of the right of land- locked States to
innocent passage of goods across the soil of another State? It appears that
"the leading authorities on international law have expressed divergent
views on the question of the transit rights of land-locked countries.
While one group of writers, such as, Sibert,
Scelle and others have held the view that these countries have an inherent
right of transit across neighbouring countries, other equally eminent authorities,
such as, Mc Nair and Hyde have held the view that these rights are not
principles recognised by international law, but arrange but arrangements made
by sovereign States". (1) The result of the lack of unanimity has been
that the land locked countries have to rely on bilateral, regional or multi-
lateral agreements for the recognition of their rights. The very existence of
innumerable bilateral treaties, while on the one hand it raises it raises a
presumption of the existence of a customary right of transit, on the other it
indicates the dependence of the right on agreement. The discontenting situation
led to attempts by national to commodity the rules relating to transit trade.
The earliest attempt was the Convention on the Freedom of Transit known generally
as the Barcelona Convention. The second attempt was the Convention on the High
Cease, 1958. The most recent in the 1965 CONVENTION ON TRANSIT TRADE OF
LAND-LOCKED STATES. As this is the latest Convention on the subject and as both
India and Nepal have signed the Convention, it may be useful to refer to it in
some detail. The Convention was the result of a Resolution of the United
Nations General Assembly which, "recognising the need of land-locked
countries for adequate transit facilities in promoting international
trade", invited "the Governments of Member States to give full
recognition to the needs of land-locked Member States in the matter of transit
trade and therefore, to accord them adequate facilities in terms of
international law and practice in this regard, bearing mind the future
requirements resulting from the economic development of the land-locked
countries". Article 1 (a) of the Convention defines the term 'land-locked
States' as meaning 'any Contracting State which has no sea-cast. The term
"traffic in Transit" is defined like this: the passage of goods
including unaccompanied baggage across the territory of a Contracting State
between 676 a land-locked State and the sea when the passage is a portion of a
complete journey which begins or terminates within the territory of that
land-locked State and which includes sea transport directly preceding or
following such passage. The transshipment, warehousing, breaking bulk, and
change in the mode of transport of such goods as well as the assembly,
disassembly or reassembly of machinery and bulky goods shall not render the
passage of goods outside the definition of "traffic in transit"
provided that any such operation is undertaken solely for the convenience of
transportation. Nothing in this paragraph shall be construed as imposing an
obligation on any Contracting State to establish or permit the establishment of
permanent facilities on its territory for such assembly, disassembly or
reassembly"; The term "transit State" is defined as meaning 'any
Contracting State with or without a sea-coast, situated between a land-locked
State and the sea, through whose territory "traffic in transit"
passes'. Article 2 prescribes that freedom of transit shall be granted under
the terms of this Convention for traffic in transit and means of transport.
Traffic in transit is to be facilitated on routes in use mutually acceptable
for transit to the Contracting States concerned. No discrimination is to be
exercise based on the place of origin departure, entry, exit or destination or
any circumstances relating to the ownership of the goods or the ownership,
place of registration or flag of vessels, land vehicles or other means of
transport used. Art. 3 provides for exemption of Traffic in Transit from
customs duties or import or export taxes or any special dues in respect of
transit, within the transit State. Art. 4 refers to means of transport and
tariffs. Art. 5 refers to methods and documentation in regard to customs,
transport, Act. Art. 6 refers to storage of goods in transit. Art. 7 refers to
delays or difficulties in traffic in transit. Art. 8 refers to free zones or
other customs facilities. Art. 9 refers to provision of greater facilities. All
that we need mention about Articles 4 to 9 is that details have necessarily to
be worked out by mutual agreement. Art. 10 refers to relation to most favoured-
nation clause. Art. 11 refers to 'exceptions to Convention' or grounds of public
health, securities, and protection. of intellectual property. It is perhaps
useful to extract the whole of Art 11.
"Exceptions to Convention on grounds of
public health, security, and protection of intellectual property
1. No. Contracting State shall be bund by
this Convention to afford transit to persons whose admission into its territory
is forbidden, 677 or for goods of a kind of which the importation is
prohibited, either on grounds of public morals, public health, or security or
as a precaution against diseases of animals or plants or against pests.
2. Each Contracting State shall be entitled
to take reasonable precautions and measures to ensure that persons and goods,
particularly goods which are the subject of a monopoly, are really in transit,
and that the means of transport are really, used for the passage of such goods,
as well as to protect the safety of the routes and means of communication.
3. Nothing in this Convention shall affect
the measures which a Contracting State may be called upon to take in pursuance
of provisions in a general international convention, whether of a word-wide or
regional character, to which it is a party, whether such convention was already
concluded on the date of this Convention or is concluded later, when such
provisions relate:
(a) to export or import or transit of
particular kinds of articles such as narcotics, or other dangerous drugs, or
arms; or (b) to protection of industrial, literary or artistic property, or
protection of trade names, and indications of source or appellations of origin,
and the suppression of unfair competition.
4. Nothing in this Convention shall prevent
any Contracting State from taking any action necessary for the protection of
its essential security interests". Art. 12 refers to exceptions in case of
emergency. Art. 13 refers to application of the Convention in time of war. Art.
14 refers to obligations under the Convention and rights and duties of United
Nations Members. Art. 15 refers to reciprocity. Art.
16 refers to settlement of disputes. Art. 17
refers to signature. Art. 18 refers to ratification. Art. 19. refers to
accession. Art. 20 refers to entry in to force. Art. 21 refers to revision.
Art. 22 refers to notifications by the Secretary-General. And Art. 23 refers to
authentic texts.
618 It is thus seen that the Convention while
providing for freedom of transit for the passage of goods between a land-
locked State and the sea, across the territory of a transit State emphasizes
the need for agreement between the land- locked country and the transit country
and, more important for our present purposes, it specifies certain exceptions.
It is indeed remarkable that the Convention
places traffic (illicit) in industrial, literary or artistic property on the
same footing as traffic in narcotics, dangerous drugs and arms. This opinion of
the International Community as revealed by the convention must be borne in my
mind in our further consideration of the question. It may, be interesting to
notice here what Johan H.E. Fried, who represented the Government of Nepal as
one of the members of the delegation at the U.N. Conference which produced the
Convention, has to say about these exceptions. In an article which he wrote in
the Indian Journal of International law, he said,:
"The test of a treaty are its
exceptions. The proof of a treaty pudding is, when it cannot be eaten.
It is the old problem of finding a balance
between demands for saving clauses and the opposite claim that the very value
of a treaty depends on its reliability.
For land locked States, conditions under
their outlet to the outside world may be curtailed can of course be crucial.
The Convention declares exceptions
permissible for five reasons (1) certain well-specified reasons of public
policy;
(2) because of overriding international
obligations; (3) emergency in the country of transit; (4) in case of war: (5)
protection of its essential security interests.
A few words about each, in view of their
extraordinary importance.
1. Exceptions for reasons of public policy.
The State of transit may-this is permissive, not obligatory-prohibit transit of
certain goods for the reason that their import into its own territory is
prohibited, namely (Art. 11, Para 1):
(a) grounds of public morals- e.g., indecent
literature:
679 (b) on grounds of public health or public
security;
(e.g., contaminated food or improperly packed
explosives);
(c) as precaution against animal diseases
plant diseases or pests.
This clause (dubbed at the Conference as the
"dirty pictures and rotten fish clause") will not hamper
international trade if properly applied.
2. The same can probably be said of the
"measures which a Contracting State may be called upon to take
("poutetre amena a prendre" in the equally authentic French version
which is several niches less permissive) in obedience to certain international
treaties to which it is a party, namely, treaty provisions relating to (a)
"expert, import or (i) transit of particular kinds of articles such as
narcotics, or other dangerous drugs, or arms". (As to arms this would
therefore only become operative if a worldwide or regional treaty prohibiting
or restricting international arms trade existed).
(b) "protection of industrial, literary
or artistic property, or protection of trade names", and the like These
provisions are noteworthy because they permit the States of transit to enforce,
say a copy- right or trade-mark convention even if for example, neither the
country of origin nor of destination is party to it...........................
Far as these provisions go, transit traffic must not be hampered for any other
reason of public policy of the State of transit. If that State forbids
importation of certain luxury goods for financial reasons, or of certain
textiles to protect its own spinning industry, that is, economic reasons, or of
shortwave radios for political reasons-all such goods must still be permitted
to pass through its territory.
3. Qualified emergency...................................
4.
War.................................................
5. Protection of essential security
interests..............................
We may now take a look at the treaties with
our neighbour Nepal and the Protocols. First, the 'Treaty of Trade' which was
contracted "in order to expand trade between their respective territories
and encourage collaboration in economic development". Art. 2 stipulates
that the contracting parties shall endeavour to grant maximum facilities and to
undertake all necessary measures for the free and unhampered flow of goods,
needed by one country from the other, to and from their respective territories.
Art. 3 enjoins the contracting parties to accord unconditionally to each other
treatment no less favourable than that accorded to any third country with
respect to (a) customs duties and charges of any kind imposed on or in
connection with importation and exportation and (b) import regulations
including quantitative restrictions. Art. 4 provides that the contracting
parties should, on a reciprocal basis, exempt from basic customs duty as well
as from quantitative restrictions the import of such primary products as may be
mutually agreed upon, from each other. Art. 8 casts a duty on the contracting
parties to cooperate effectively with each other to prevent infringement and
circumvention of the laws, rules and regulations of either country in regard to
the matters relating to foreign exchange and foreign trade. Art. 9 specially
provides that notwithstanding the earlier provisions of the treaty either
Contracting Parry may maintain or introduce such restrictions as are necessary
for the purpose of (a) protecting public morals, (b) Protecting human, animal
and plant life, (c) Safeguarding national treasures, (d) safeguarding the
implementation of laws relating to the import and export of gold and silver
bullion, and 681 (e) safeguarding such other interests as may be mutually agreed
upon.
Article (10) which may be extracted in full
is as follows: "Nothing in this Treaty shall prevent either Contracting
Party from taking any measures which may be necessary for the protection of its
essential security interests or in pursuance of general international
conventions, whether already in existence or concluded hereafter, to which it
is a party relating to transit, export or import of particular kinds of
articles such as opium or other dangerous drugs or in pursuance of general
conventions intended to prevent infringement of industrial, literary or
artistic property or relating to false marks, false indications of origin or
other methods of unfair competition".
It appears to us that the Treaty of Trade
concerned itself with trade between India and Nepal and not with trade between
Nepal and other countries. The provisions relating to import, export, transit
and the free and unhampered flow of goods refer to the import and the export
from one country to another i.e. from India to Nepal and from Nepal to India
and to the transit and the free and unhampered flow of goods in the course of
trade between the two countries. Even so, express reservation is made to enable
each of the countries to impose restrictions for certain purposes and to take such
measures as may be necessary for the protection of essential security interests
and effectuating international conventions relating to opium and other
dangerous drugs and also to effectuate "general conventions intended to
prevent infringement of industrial, literary or artistic property or relating
to false marks, false indications or origin or other methods of unfair
competition". (Art. 10) The Treaty of Transit is more relevant. Its
scheme, and sequence and even the language indicate that it is based on the
1965 CONVENTION ON TRANSIT TRADE OF LAND-LOCKED COUNTRIES. The Preamble to the
treaty mentions that a treaty has been concluded 'recognising that Nepal as a
land-locked country needs access to and from the sea to promote its
international trade, and recognising the need to facilitate the traffic in
transit through their territories'. Art. 3 defines 'Transit' in Transit' and is
as follows:
"The term 'Traffic in Transit' means the
passage of goods including unaccompanied baggage across the territory of a
Contracting party when the passage is a portion of a complete journey which
begins 682 or terminates within the territory of the other Contracting Party.
The transshipment, warehousing, breaking bulk and change in the mode of
transport of such goods as well as the assembly or reassembly of machinery and
bulky goods shall not render the passage of goods outside the idefinition of
"traffic in transit" provided any such operation is undertaken solely
for the convenience of transportation.
Nothing in the Article shall be construed as
imposing an obligation on either Contracting Party to establish or permit the
establishment of permanent facilities on its territory for such assembly,
disassembly, or reassembly".
Art.1 requires the Contracting Parties to accord
'Traffic in Transit' freedom of transit across their respective territories
through routes mutually agreed upon making no destination based on flag of
vessels the places of origin, departure entry, exit, destination, ownership of
goods or vessels.
Art. 4 exempts Traffic in Transit from
customs duties and transit duties or other charges except reasonable charges
for transportation and such other charges as are commensurate with the costs of
services rendered in respect of such transit.
Art. 5 requires each of the Contracting
Parties to provide, for the convenience of traffic in transit, warehouses or
sheds, for the storage of traffic in transit awaiting customs clearance before
onward transmission.
Art. 6 stipulates that Traffic in Transit
shall be subject to the procedure laid down in the Protocol, Articles 8 and 9
correspond to the provisions of Articles 11, 12 and 13 of the 1965 CONVENTION
ON TRANSIT TRADE OF LAND-LOCKED STATES and are similar to Article 9 and 5 to 10
of the Treaty of Trade and reserve the right of each of the contracting parties
to impose restrictions for certain purposes and take measures in connection
with certain interests. In particular Art. 9 mentions that nothing in the
treaty shall prevent either Contracting Party from taking any measure which may
be necessary in pursuance of general conventions intended to prevent
infringement of industrial, literary or artistic property or relating to false
marks, false indications of origin or other methods of 683 unfair competition.
The protocol annexed to the Treaty of Transit
contains a detailed procedure for the transit of goods across the territory of
India en-route from the Port of Calcutta to their Nepalese destination. The
Protocol contains detailed provisions to ensure the goods reaching Nepal and to
prevent the contingency of the goods escaping into the Indian market while on
the way to Nepal.
While the Treaty of Trade generally
guarantees to each of the Contracting Parties the free and unhampered flow of
goods needed by one country from the other, the Treaty of Transit generally
guarantees to each of the Contracting Parties freedom of transit across the
territory of the other Contracting Party in respect of goods which have to pass
through the territory of such other Contracting party to reach the first
Contracting Party from outside the territory of the second Contracting Party.
In practice the two treaties really mean a guarantee to Nepal to permit free
and unhampered flow of goods needed by Nepal from India and a guarantee of freedom
of transit for goods originating from outside India across the territory of
India to reach Nepal.
In the matter of payment of customs duties
the Treaty of Trade provides for the most favourable treatment while the Treaty
of Transit grants exemption from such payment. Both treaties contain
reservations. There is a reservation enabling the imposition of such
restrictions as are necessary for the purpose of protecting public morals,
human, animal and plant life, safeguarding national treasures, the implementation
of laws relating to the import and export of gold and silver bullion and the
safeguarding of other mutually agreed interests. There is an express
reservation for the protection of essential security interests. There is also
provision for necessary measures in pursuance of general international
conventions relating to transit, export or import of articles such as opium or
other dangerous drugs. There is further provision for taking necessary measures
in pursuance of general conventions intended to prevent infringement of
industrial, literary and artistic property or relating to false marks, false
indications of origin or other methods of unfair competition. So, the two
treaties generally assure to Nepal the free and unhampered flow from India and
freedom of transit across India, to goods or of goods which we may say in the
broad way are not res extra commercium. In particular the treaties expressly
contain reservations enabling each of the contracting parties to 684 take
measures in pursuance of general conventions for the protection of industrial,
literary and artistic property.
So we have it that Art. 11 of the 1965
CONVENTION ON TRANSIT TRADE OF LAND-LOCKED STATES, Art. 10 of the Treaty of
Trade and Art. 9 of the Treaty of Transit contain exceptions to protect
"industrial, literary or artistic property" and to prevent
"false marks, false indications of origin or other methods of unfair
competition", pursuant to general conventions. Neither the International
Convention of 1965 nor the Treaties between the two nations prohibit the
imposing of restrictions for this purpose. On the other hand, they contain
reservations to the contrary. So great is the concern of the International
Community for industrial, literary or artistic property that the Convention on
Transit Trade of Land-locked Countries views traffic in, this kind of property
with the same gravity as it views traffic in narcotics dangerous drugs and
arms. So, the Convention on Transit Trade of Land-locked States and the
Treaties between the two countries, leave either country free to impose
necessary restrictions for the purpose of protecting industrial, literary or
artistic property and preventing faise marks, false indications of origin or
other methods of unfair competitions in order to further other general
conventions. It is clear that for this purpose, it is not necessary that the
land-locked country should be a party to the general Convention along with the
transit country. The interpretation placed by Johan H.E. Fried that the
provisions of the 1965. Convention permit the States of transit to enforce, sa/
a Copyright or trade mark convention even if, for example, neither the country
of origin nor of destination is party to it appears to us to be a correct
interpretation.
The next step for us to consider is whether
there is any general Convention on Copyright. An artistic, literary or musical
work is the brain-child of its author, the fruit of his labour, and, so,
considered to be his property. So highly is it prized by all civilised nations
that it is thought worthy of protection by national laws and international
Conventions relating to Copyright. The International Convention for the
protection of literary or artistic works first signed at Berne on 9th
September, 1886, was revised at Berlin in 1908, at Rome in 1928, at Brussels in
1948, at Stockholm in 1967 and finally at Paris in 1971.
Art. 1 of the Convention, as revised,
constitutes the countries to which the Convention applies into a Union for the
protection of 685 the rights of authors in their literary and artistic works.
The expression 'literary and artistic works'
is defined to include every production in the literary, scientific and artistic
domain whatever may be the mode or formation of its expression. It is provided
that the work shall enjoy protection in all countries of the Union. Various
detailed, provisions are made in the Convention for the protection of the
works. Art. 9 provides that authors of literary and artistic works protected by
the convention shall enjoy the exclusive right of authorising the reproduction
of these works in any manner or form. It is also expressly stipulated that any
sound or visual recording shall be considered as a reproduction for the
purposes of the Convention. We are not really concerned with the several
details of the Convention.
But we may refer to Art. 16 which provides:
"1. Infringing copies of a work shall be
liable to seizure in any country of the Union where the work enjoy legal
protection;
2. The provisions of the preceding paragraphs
shall also apply to reproductions coming from a country where the work is not
protected or has ceased to be protected.
3. The seizure shall take place in accordance
with the Legislation of each country". India we may mention is a party to
the Berne Convention.
The Universal Copyright Convention which was
first signed in Geneva on September 6, 1952 was revised in Paris in 1971. Each
Contracting State is called upon to undertake 'to provide for the adequate and
effective protection of the right of authors and other copy-right proterietors
in literary, scientific and artistic works including writings, musical,
dramatic and cinematograph works and paintings, engraving and sculpture'. The
rights are to include the exclusive right to authorise reproduction by any
means, public performance and broadcasting. Each Contracting State is required
to adopt such measures as are necessary to ensure the application of the
Convention. The Convention is not in any way to affect the provision of the
Berne Convention for the protection of literary or artistic works or membership
in the Union created by that Convention. The Universal Copyright Convention is
not applicable to the relationships among countries of 686 the Berne Union in
so far as it relates to the protection of works having as their country of
origin, within the meaning of the Berne Convention, a country of the Berne
Union. India is a signatory to the Universal Copyright convention also.
The time is now ripe for us to refer to our
own Copyright Act of 1957. Section 2(c), (h), (o), (p), (f) and (w) define
'artistic work', dramatic work', literary work, 'musical work', 'cinematograph
film' and 'record' respectively. Sec. 2(y) defines "work" as meaning
any of the following works, namely,:
(i) a literary, dramatic, musical or artistic
works;
(ii) a cinematograph film;
(iii) a record.
'Record' is defined by Sec. 2(w) to mean 'any
disc, tape perforated roll or other device in which sounds are embodied so as
to be capable of being reproduced there from, other than a sound track
associated with the cinematograph film. 'Recording' is defined by Sec. 2(x) to
mean 'the aggregate of the sounds embodied in and capable of being reproduced
by means of a record". "Infringing copy' in relation to a record is
defined to mean, by Sec. 2(m)(iii), "any such record embodying the same
recording. If such record is made or imported in contravention of the
provisions of the Act'. Sec. 13(1) states that copyright shall subsist throughout
India in (a) original, literary, dramatic, musical and artistic works; (b)
cinematograph films; and (c) records. Sec. 14 explains the meaning of
'Copyright' in relation to various 'works'. In the case of a record, copyright
is said to mean "the exclaims right, by virtue of, and subject to the
provisions of, this Act to do or authorise the doing of any of the following
acts by utilising the record, namely:
(i) to make any other record embodying the
same recording;
687 (ii) to cause the recording embodying in
the record to be heard in public;
(iii) to communicate the recording embodied
in the record by radio diffusion" (Sec. 14(1)(d).
Sections 17 to 21 deal with 'Ownership of
Copyright and the rights of the owner', Sections 22 to 29 with 'Term of
Copyright', Sections 30 to 32 with 'Licences', Sections 33 to 36 with
'Performing Rights Societies', Sections 37 to 39 with Rights of Broadcasting
Authorities, Sections 40 to 43 with International Copyright and Sections 44 to
50 with Registration of Copyright. Sections 51 to 53 deal with infringement of
Copyright.
Sec, 51 states when Copyright in a work shall
be deemed to be infringed. In particular clause (b) states that Copyright shall
be deemed to be infringed "when any person- (i) makes for sale or hire, or
sells or lets for hire, or by way of trade displays or offers for sale or hire,
or (ii) distributes either for the purpose of trade or to such an extent as to
affect prejudicially the owner of the copyright or (iii) by way of trade
exhibits in public, or (iv) imports (except for the private and domestic use of
the importer) into India, any infringing copies of the work'.
There is an explanation to which it is not
necessary to refer for the purposes of this case, 688 Sec. 52 enumerates the
acts which shall not constitute an infringement of copyright. It is unnecessary
to refer to the various acts enumerated in Sec. 52. it is enough to state that
bringing into India an infringing work for the purpose of transit to Nepal or
any other country is not one of the excepted acts.
Sec. 53 which is of direct relevance as it
deals with importation of infringing copies' needs to be fully extracted'. It
says,:
"53.(1) The Registrar of Copyrights, on
application by the owner of the copyright in any work or by this duly
authorised agent and on payment of the prescribed fee, may, after making such
inquiry as he deems fit, order that copies made out of India of the work which
if made in India would infringe copyright shall not be imported.
(2) Subject to any rules made under this Act,
the Registrar of Copyrights or any person authorised by him in this behalf may
enter any ship, dock or premises where any such copies as are referred to in
sub-section (1) may be found and may examine such copies.
(3) All copies to which any order made under
sub- section(1) applies shall be deemed to be goods of which the import has
been prohibited or restricted under Sec. 11 of the Customs Act, 1962, and all
the provisions of that Act shall have effect accordingly;
Provided that all such copies confiscated
under the provisions of the said Act shall not vest in the Government but shall
be delivered to the owner of the copyright in the work.
This provision empowers the Registrar of
Copyrights to make an order that copies made out of India of any work which if
made in India would infringe Copyright, shall not be imported. This the
Registrar may do on the application of the owner of the Copyright in that work
or by his duly authorised agent on payment of the prescribed fee and after
making such enquiry as he deems fit.
689 The effect of such an order by the
Registrar is to deem all copies to which the order applies to be goods of which
the port has been prohibited or restricted under sec. 11 of the Custom Act,
1962, and to attract all the provisions of the Customs Act that basis,
including the liability to be confiscated, with the modification that copies
confiscated under the provisions of the Act shall not vest in the Government,
but shall be delivered to the owner of the Copyright.
The question is what does the word import'
mean in Sec. 53 of the Copyright Act ? The word is not defined in the Copyright
Act though it is defined in the Customs Act. But the same word may mean
different things in different enactments and in different contexts. It may even
mean different things at different places in the same statute. It all depends
on the sense of the provision where it occurs.
Reference to dictionaries is hardly of any
avail, particularly in the case of words of ordinary parlance with a variety of
well known meanings. Such words take colour from the context. Appeal to the
Latin root won't help. The appeal must be to the sense of the statute. Hidayatullah
J in Burmah Shall etc v. Commercial Tax Officer, [1961] 1 SCR 902 has
illustrated how the contextual meanings of the very words import' and export'
may vary.
We may look at Sec. 53, rather than elsewhere
to discover the meaning of the word "import". We find that the
meaning is stated in that provision itself. If we ask what is not to be
imported, we find the answer is copies made out of India which if made in India
would infringe copyright. So it follows that 'import' in the provision means
bringing into India from out of India. That, we see in precisely how import is
defined under the Customs Act. Sec. 2(23) of the Customs Act, 1962 defines the
word in this manner:
"Import, with its grammatical variation
and cognate expression means bringing into India from a place outside India.
But we do not propose to have recourse to Customs Act to interpret expressions
in the Copyright Act even if it is permissible to do so because Sec. 53 of the Copyright
Act is made to run with Sec. 11 of the Customs Act.
690 It was admitted by the learned counsel
for the respondents that where go are brought into the country not for
commerce, but for onward submission to another country, there can, in law, be
no important. It was said that the object of the Copyright Act was to precious
authorised reproduction of the work or the unauthorised explosion of the
reproduction of a work in India and this object would not be frustrated if
infringing copies of a work were allowed transit across the country. If goods
are brought in only to go out, there is no import, it was said. It is difficult
to agree with this submission thought it did find favour with the Division
Bench of the Calcutta High Court, in the judgment under appeal. In the first
place, the language of Sec. 53 does not justify reading the words 'imported for
commerce for the words imported'. Nor is there any reason to assume that such
was the object of the legislature. We have already mentioned the imported
attached by International opinion, as manifested by the various International
Conventions and Treaties, to the protection of Copyright and the gravity with
which traffic in industrial, literary or artistic property is viewed, treating
such traffic on par with traffic in narcotics, dangerous drugs and arms. In
interpreting the word import' in the Copyright Act, we must take note that
while positive requirement of the Copyright Conventions is to protect
copyright, negatively also, the Transit Trade Convention and the bilateral
Treaty make exceptions enabling the Transit State to take measure to protect
Copyright. If this much is borne in mind, it becomes bear that the word import'
in Sec. 53 of the Copyright Act cannot bear the narrow interpretation sought to
be placed upon it to limit it to import for commerce. It must be interpreted in
a sense which will fit the Copyright Act into the setting of the International
Conventions.
The Calcutta High Court thought that goods
may be said to be imported into the country only if there is an incorporation
or mixing up of the goods imported with the mass of the property in the local
area. In other words the High Court realized on the original package doctrine'
as enunciate by the American Court. Reliance was placed by the High Court upon
the decision of this court in the Central India Spinning and Weaving &
Manufacturing Co. Ltd; The Empress Mills, Nagpur v. The Municipal Committee,
Wardha [1958] SCR 1102). That was a case which arose under the C.P. and Berar
Municipalities Act and the question was whether the power to impose 'a terminal
tax on goods or animals imported into 691 or exported from the limits of a
municipality" included the right to levy tax on goods which were neither
loaded or unloaded at Wardha but were merely carried across through the
municipal area'. This court said that it did not. The word 'import' it was
thought meant not merely the bringing into but camprised something more, that
is 'incorporating and mixing up of the goods with the mass of the property in
the local area', thus accepting the enunciation of the 'Original Package
Doctrine' by Chief Justice Marshall in Brown v. State of Maryland 6 L.Ed. 78.
Another reason given by the learned Judges to arrive at the conclusion that
they did, was that the very levy was a 'terminal tax' and, therefore, the words
'import and export', in the given context, had something to do with the idea of
a terminus and not an intermediate Stage of a journey. We are afraid the case
is really not of any guidance to us since in the context of a 'terminal tax'
the words 'imported and exported' could be construed in no other manner than
was done by the Court. We must however say that the 'original package doctrine'
as enunciated by Chief Justice Marshall on which reliance was placed was
expressly disapproved first by the Federal Court in the Province of Madras v.
Buddu Paidama, [1942] FCR 90 and again by the Supreme Court in State of Bombay
v. F.N. Balsara, [1951] SCR 682. Apparently, these decisions were not brought
to the notice of the court which decided the case of Central India Spinning and
Weaving and Manufacturing Co. Ltd. The Empress Mills Nagpur Municipal
Committee, Wardha. So we derive no help from this case. As we said, we prefer
to interpret the words 'import' as it is found in the Copyright Act rather than
research for its meaning by referring to other than research statutes where it
has been used.
The learned counsel for the appellant invited
our attention to Radhakishan v. Union of India : [1965] 2 S.C.R. 213, Shawhney
v. Sylvania and Laxman, 77 Bom. LR. 380, Bernado v. Collector of Customs A.I.R.
1960 Kerala 170, to urge that importation was complete so soon as the Customs
barrier was crossed. They are cases under the Customs Act and it is needless
for us to seek aid from there when there is enough direct light under the Copyright
Act and the various conventions and treaties which have with the subject
Copyright' from different angles. We do not also desire to crow our judgment
with reference to the history of the Copyright and the Customs legislations in
the United Kingdom and India as we do not think it necessary to do so in this case.
We have, therefore, no hesitation in coming
to the conclusion that the word 'import' in Secs. 51 and 53 of the Copyright
Act 692 means 'bringing into India from outside India', that it is not limited
to importation for commerce only but includes importation for transit across
the country. Our interpretation, far from being inconsistent with any principle
of International law, is entirely in accord with International Conventions and the
Treaties between India and Nepal. And, that we think is as it should be.
We have said that an order under Sec. 53 may
be made by the Registrar of Copyrights on the application of the owner of the
Copyright, but after making such enquiry as the Registrar deems fit. On the
order being made the offending copies are deemed to be goods whose import has
been prohibited or restricted under Sec. 11 of the Customs Act.
There upon the relevant provisions of the Customs
Act are to apply, with the difference that confiscated copies shall not vest in
the Government, but shall be delivered to the owner of the Copyright. One
fundamental difference between the nature of a Notification under Sec. 11 of
the Customs Act and an order made under Sec. 53 of the Copyright Act is that
the former is quasi-legislative in character, while the latter is
quasi-judicial in character. The quasi-judicial nature of the order made under
Sec. 53 is further emphasised by the fact that an appeal is provided to the
Copyright Board against the order of the Registrar under Sec.72 of the Copyright
Act. We mention the character of the order under Sec. 53 to indicate that the
effect of an order under of the Copyright Act is not as portentous as a
notification under Sec. 11 of the Customs Act. The Registrar is nor bound to
make an order under Sec. 53 of the Copyright Act so soon as an application is
presented to him by the owner of the Copyright. He has naturally to consider
the context of the mischief sought to be prevented. He must consider whether
the copies would infringe the Copyright if the copies were made in India. He
must consider whether the applicant owns the Copyright or is the duly
authorised agent of the Copyright. He must hear these claiming to be affected
if an order is made and consider any contention that may be put forward as an
excuse for the import. He may consider any other relevant circumstance. Since
all legitimate defences are open and the enquiry is quasi-judicial, no one can
seriously complain.
In the result, the judgment of the Division
Bench is set aside and that of the learned single judge restored.
There is no order as to costs. We are
grateful to the learned Attorney General, who appeared at our instance, for the
assistance given by him.
H.S.K. Appeal allowed.
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