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TMI Blog1984 (2) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... icularly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- 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 unequivoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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, implicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unfai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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 the Berne Union in so far as it r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right. 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, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d; 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 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 guid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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