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TMI Blog2010 (5) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... and plaintiff No. 2 Wiley India Pvt. Ltd is the exclusive licensee of the plaintiff No. 1 having its office at Delhi. b) The plaintiff No. 3 Cengage Learning Inc., a corporation incorporated under the laws of State of Delaware in US is the owner of the copyrights in the books and the plaintiff No. 4 Cengage Learning India Pvt. Ltd is an affiliate and exclusive licencee of the plaintiff No. 3 which publishes the books of the plaintiff No. 3 in India. c) The plaintiff No. 5 Pearson Education Inc. is a corporation incorporated and existing under the laws of the State of Delaware in USA. d) The plaintiff No. 6 Dorling Kindersley India Pvt. Ltd. is a company incorporated in India under the Companies Act having its registered office at New Delhi. 3. The plaintiffs (collectively) claim to be pioneers in their respective fields of publishing academic, scientific and other educational books which are circulated world wide. The plaintiffs claim to have a repertoire of the books which are published by them and are available globally at the prices settled by the plaintiffs. 4. It is averred in the plaint that the Indian market is quite significant for all the plaintiffs' publisher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Additionally each book bears a yellow band at the top of the cover with the phrase "Low Price Edition" prominently appearing on the front and back covers with the abbreviation "LPE" on the spine of each book. 9. The plaintiffs contend that any attempt by anyone to sell, distribute or circulate the books outside the territories prescribed by the owners of the copyright shall cause infringement of the copyright. The said claim is averred in the plaint by stating that India is signatory to the Universal Copyright Convention and the Berne Convention and the rights of a copyright holder shall extend to the member countries by virtue of Section 40 of the Copyright Act. 10. It is further averred in the plaint that the said books are reprint editions which are first published in US and thereafter the reprints are effected by the licensees under the aforesaid arrangement by their respective licencees in India for sale in designated territories. 11. The grievance of the plaintiffs begins with the rampant problem of the export of books which are reprint editions meant for the Indian and neighbouring territories to the Western Countries which not only causes copyright ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiffs' representative in New York had placed an order for the purchase of two books titled "Microwave Engineering 3/e" by David M. Pozar and "Fundamentals of Fluid Mechanics 5/e" by Bruce R. Munson, Donald F. Young and Theodore H Okiishi for the price of US$ 16.60 and US$ 17.30 respectively. The plaintiffs state that the US editions of the above books are priced at US$ 149 and US$ 172.95 respectively. The plaintiffs representative received the said order by way of an India Speed Post sealed package and it was found that the said books are Wiley Student Editions which are restricted for sale in Bangladesh, Myanmar, India, Indonesia, Nepal, Pakistan, Philippines, Sri Lanka and Vietnam. Thus, the plaintiffs state that there is no reason to doubt that it is defendant No. 3 managed by Defendant No. 1 and 2 which is carrying out such activities of infringement of the plaintiffs' rights. 16. In August 2008, the plaintiffs again repeated the exercise by ordering 5 titles from the defendants' bookstore on the internet and recorded confirmation for multiple titles and receipt of US $ 152.80. Details of these titles are as under: a. Calculus Early Transce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chased are legally purchased in India and they leave the territory of India once they are exported. Thus, the defendants contend that no act of infringement is done within the territory of India and thereby the provisions of the Copyright Act are not attracted. iii) There is no case made out as regards parallel imports where goods are brought into the territory of India and if the same are found to be infringing, they can be said to be infringement of the rights of the right holder. In contradistinction to this, the case which the plaintiffs are building is of export of the articles from India in which case there cannot be any infringement so far as the export of books from India is concerned and at best, the same may be infringement of the rights of the plaintiffs in the country where the said books are imported. iv) The plaint does not disclose any cause of action qua infringement and same is liable to rejected under Order VII Rule 11 CPC as there is no case made out for infringement of copyright. v) The defendants rely upon the rule of 'exhaustion of rights' enshrined in the copyright regime whereby the rights of the copyright holder are lost once the first sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is the prerogative of the owner of the copyright to issue the copies of the work to the public if the same are not in circulation already and the defendants, by putting into circulation the copies of Low Price Editions meant for specific territories, are violating the right of owner of the copyright and thus causing infringement of the copyright. c) The learned senior counsel has also referred to Section 51 of the Copyright Act to state that infringement is deemed to be done by a person who does without licence or permission any acts which are conferred on the owner of the work. Thus, as per the counsel for the plaintiffs, a clear cut case of infringement is made out. d) The next submission of Mr. Rohatgi, Learned Senior counsel for the plaintiffs is that even the export of the goods is treated to be infringement within the meaning of the Copyright Act if it violates the rights of the owner. That being the situation, it makes no difference if the books meant for sale in India and neighbouring states are exported to other countries as that also constitutes infringement of the copyright held the owner. 23. To buttress his submission, Learned Senior Counsel relied upon the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to controvert the argument of first sale doctrine to demonstrate that the interpretation of first sale doctrine given by the defendants would mean that once the sale of the article has been effected in India, then the owner loses/exhausts all the rights to control the subsequent sale anywhere in the world which would be incongruous as the books which are in circulation in India may not be in circulation elsewhere in the world. 27. Hence, the submission of Learned Senior counsel for the plaintiffs is that once the export is effected to the territories beyond the ones indicated upon the books, then the books which are not in circulation in the public of that territory are made available to them, which would lead to infringement of the copyright of the plaintiffs. 28. Mr. Rohatgi countered the applicability of the first sale doctrine by stating that the same would be inapplicable in the present case in view of the preceding submission which is that the books so exported are not already in circulation in the territory where they are exported. 29. Further, it is strenuously argued by Mr. Rohatgi that the first sale doctrine is limited to the goods lawfully manufactured in USA only. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct any more than 602(a)'s 'acquired abroad' language does. 9. ...The common understanding of the presumption against extra territorial is that a U.S. statute applies only to conduct occurring within, or having effect within, the territory of the United States, unless the contrary is clearly indicated by the statute.... Recognizing the importance of avoiding international conflicts of law in the area of intellectual property, however, we have applied a more robust version of this presumption to the Copyright Act, holding that the Act presumptively does not apply to conduct that occurs abroad even when that conduct produces harmful effects within the United States.... 11. ...In short copies covered by the phrase "lawfully made under [Title 17] in 109(a) are not simply those which are lawfully made by the owner of a U.S. copyright. Something more is required. To us, that "something" is the making of the copies within the United States where the Copyright Act applies.... 'Gray-Market' goods, or `parallel imports' are genuine products possessing a brand name protected by a trademark or copyright. They are typically manufactured abroad, and pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants are amenable to the jurisdiction of this Court as they are carrying on such business and residing within territorial jurisdiction of this Court. Section 19 of the Sales of Goods Act, 1930 is relied upon to support the submission that the property in the goods shall pass where the parties intend it to be transferred. 33. He argued that there is a consent decree which is passed against the Defendant No. 2 on 4.2.2008 by United States District Court Southern District, New York whereby the Defendant No. 2 has agreed to suffer a decree of permanent injunction amongst others in the said proceeding. Operative part of the decree reads as under: ...Ordered, Adjudged and Decreed that defendants Amit Gupta, Subodh Jain, and HPC Publishers Distributors, each doing business as HPC Publishers and defendant Stream Dollar Store, and their agents, servants, and employees, and all those acting in concert with them, if any, are hereby Permanently Enjoined, either directly or indirectly through a third party, from: (i) Infringing the registered copyrights and trademarks of plaintiff Person Education, Inc. ("Pearson"), identified on Schedules A and E hereto, the registered co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Rahul Gupta, learned Counsel for the defendants can be summarized in the following manner: a) Mr. Gupta firstly submitted that the present case of the plaintiffs does not fall under any of the provisions of the Copyright Act. Section 51 of the Act was read by Mr. Gupta to contend that there is no provision in the said Section and nor there is any provision under Section 14 of the Act whereby the export of the books would tantamount to infringement. Thus, learned Counsel submitted that no provision of the Copyright Act, 1957 is attracted which can lead to infringement of copyright. b) Mr. Gupta advanced the preceding argument by further contending that the analogy of import cannot be equated with the export of the article. Mr. Gupta has supported this argument by stating that so far as the import of the work is concerned, the Legislature has specifically included the same within the meaning of infringement by express inclusion of such import in Section 51 as well as Section 2(m) which talks about infringing copies of an article. c) Mr. Gupta submitted that by not including export of the work within the definition of 'infringing copy' or in the provision for infrin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendants are paragraphs 58 and 63 of the judgment. 41. Mr. Gupta also submitted that the foreign judgment/consent decree passed in the US Court is not binding upon this Court and does not effect the case of the defendants. Lastly, it was argued by the learned Counsel for the defendants that this Court does not have territorial jurisdiction to try the present matter as there is no cause of action which has occurred within the territorial jurisdiction of this Court. 42. After hearing the submissions made by the parties, I feel it appropriate to divide my discussion on the subject into the following heads: a) Infringement of copyright b) Applicability of first sale doctrine and its probable impact. c) Conclusion Infringement of copyright 43. Copyright is a bundle of rights which is meant for authors and creators so that they may reap the benefits of their creations. The said rights also enable the owners/right holders to exploit their work to the maximum by controlling the distribution of their work. This can be done through multiple licencing arrangements which can be further subjected to territory wise distribution. 44. Due to the advent of new and upgraded technol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be satisfied by all the authors of the work. (3) Copyright shall not subsist- (a) In any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) In any [sound recording] made in respect of a literary, dramatic or musical work, it in making the [sound recording], copyright in such work has been infringed. (4) The copyright in a cinematograph film or a [sound recording] shall not affect the separate copyright in any work in respect of which a substantial part of which, the film, or as the case may be, the [sound recording] is made. (5) In the case of a work or architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods or construction. 14. Meaning of copyright - For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely: (a) In the case of a literary, dramatic or musical work not being a computer programme,- (i) to reproduce the work in any material form including the sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any conditions imposed by a competent authority under this Act- (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright, or] (b) When any person- (i) makes for sale on 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 purposes 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 [***] into India, any infringing copies of the work: [Provided that nothing in Sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.] Expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act by way of necessary adaptation and modification. The said Section 19 and 19A reads: 19. Mode of assignment.- [(1)] No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authzrised agent. (2) The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment. (3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties. (4) Where the assignee does not exercise the right assigned to him under any of the other sub-sections of this Section within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment. (5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment. (6) If the territorial ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is effective from May 1, 2006 and the said agreement relates to permission to issue reprint editions of the books. The clauses of the agreement reads as under: The titles listed on the attached Schedule A are the subject of various reprint agreements between Willey & John Willey & Sons (Asia) Pvt. Ltd which granted English language reprint rights. All of the titles listed are published in print and for sale as English language reprint editions in the following territories : India, Bangladesh, Indonesia, Myanmmar, Nepal, Pakistan, Phillipines, Sri Lanka,, Vietnam. Whereas Wiley now wants such reprints to be transferred to Wiley India Pvt Ltd, all three parties agree that: a) By Signature of an authorized officer on this agreement John Wiley & Sons (Asia) Pvt. Ltd agrees and affirms that all rights granted to them in the titles on the attached schedule A by Wiley are transferred to Wiley India Pvt. Ltd. b) By signature of the authorized officer on this agreement, wiley hereby approves such transfer of the rights. c) By signature of an authorized officer on this agreement, Wiley India Pvt. Ltd. hereby agrees to assume all rights previously granted to John Wiley & Sons (Asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferred upon the owner of the copyright. Infringement of rights under the Act has thus to be seen from the perspective of the rights of the owner and not those of the licencee. There is fine distinction between the limited rights of the licencee and those of the owner. 56. It is an established principle of the law that when a plain and a natural reading and meaning of a Section is clear and unambiguous, then the court cannot insert or introduce any words to the Section and cannot depart from the plain reading principle or literal rule. In Association for Development v. Union of India and Ors. 167 (2010) DLT 481 DB this Court approved the literal rule and observed that "it is not the duty of the court to enlarge the scope of the legislation when the language of the provision is plain and unambiguous." The court cannot recast or reframe the legislation for the very reason it has no power to legislate. The court cannot add words to a statute or reads words into it which are not there." 57. Applying the plain rule and giving it its natural and existing meaning, Section 51 of the Copyright Act talks about infringement of the rights of the owner which are different from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch work, be presumed, unless the contrary is proved, to be the author or the publisher of the work, as the case may be. (3) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the discretion of the court. 61. The limited applicability of definition of an owner of copyright to include exclusive licensee only for the purposes of Chapter XII indicates the legislative intent which is to give benefit to the copyright owner to have additional right to sue for the purposes of suing for infringement of copyright through the exclusive licensee clear. But for the purposes of the other chapters including the allocation of rights and defining the rights under the Act, the definition of the owner including exclusive licencee will not be applicable. This is a rather deliberate omission vis-à-vis the other chapters and a conscious insertion/exception by the Legislature only for Chapter XII to give additional right to sue to the copyright owner through its exclusive licensee. 62. A logical corollary drawn from above analysis which needs reiteration at this stage is that for the purposes of Section 51 which is in the preceding chapter, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or and the owner of the book, then the said person will have a copyright to issue the copies of his work to the public anywhere in the world. The right of the owner of the copyright to issue copies of the work to the public in the present case would be the rights of the plaintiff No. 1, 3, 5 to issue copies to the public worldwide including but not limiting to India or to any other territories. 67. On the other hand, the rights of the exclusive licensees which will be subject to conditions and limitations imposed by the owner of the copyright will flow from both the Statute as well as from the covenant entered between the parties. Thus, the rights of the plaintiff No. 2, 4 and 6 for the purposes of the Section 14 would be to issue copies of the work to the public of the territories authorized to be done by the owner of the copyright. In the present case, the rights of the plaintiff No. 2, 4, 6 would thus be fettered by the territorial restrictions imposed by the owner. 68. The legal propositions which emanate from this discussion are as under: a) That the court will measure the infringement of the copyright from the rights of the owner of the copyright when the owner is before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight which are plaintiff No. 1, 3, 5 to issue the copies to the public not already in circulation (not of exclusive licensees) and thus will, prima facie, infringe their copyright.71. It would also be an incongruous proposition to lay down that anyone who purchases the tangible or intangible, movable or immovable property from a licensee who has merely a permissive right which is also subject to restrictions is free to exercise the rights of the owner of the said property, who has wider rights than licensee. The said acts would be an infringement of the extent of the rights which are available with the owner. I will also discuss the impact of exhaustion theory on this in the later part of the discussion. 72. There is another reason for coming to this prima facie opinion. The acts of the defendants are infringing in character as they are not merely confined to doing the acts of the owner of the copyright without permission or license. The doing of unauthorized acts of the owner of the copyright is only one kind of infringement. The other kind of infringement would be to violate the conditions of the licensee and commission of acts going beyond the fetters imposed by the license. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. 76. For better comprehension of the concept of violation of terms of license, the distinction between the assignment of rights and licensing of rights has been elucidated in Copinger & Skone James on Copyright (Fourteenth Edition by Kevin Garnett M.A., Jonathan R. James, MA. LLB, Gillian Davies, Ph.D., 1999 Edition, London, Sweet & Maxwell) which is an authority on the subject. The said author also discusses the consequences which flow from the said arrangements. The relevant extract is reproduced hereinafter: 5-193 Position of the Licensee - A License granted by a copyright owner is binding on every successor in title to his interest in copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the license or a person deriving title from such purchaser. 77. The above quote is also recognized as Section 173(2) of CDPA (Copyright Design and Patent Act, 1988) of England. The said rule is the basic principle of licensing of any property right which is the recognized rule of equity that the licensee cannot assign what is not available with him. Thus, the licensee who is the permissive right holder of the copyright whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants that the books advertised by them are international editions with content identical to the US edition is itself evident of the fact that the defendants are aware that the books which are sold in US are not the same as those sold by them. The said acts of the defendants are also causing royalty losses to the plaintiffs. Thus, the said acts of the defendants are intentional acts and are prima facie infringing by way of contravention of the conditions of licensing rights which the defendants have attained by way of purchase with notice. Hence, either seen from the perspective of the rights of the owner or from the position of the licensee, the acts of the defendants are prima facie acts of infringement within the meaning of Section 51(a) of the Copyright Act 1957. 82. I shall now discuss the submissions made at the bar by the parties in relation to the aspect of infringement of copyright. 83. The first submission of the parties with regard to the infringement of copyright stands answered in view of the above discussion resulting in the view that the acts of the defendants are infringing in nature. A related argument of the defendants was that there is no provision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 51(b) of the Act and has rather come to independent finding of primary infringement. This argument of the defendants also fails on the same count. 87. The argument of the defendants that this Court will not have jurisdiction as there is no cause of action which has arisen in Delhi and therefore the matter will not be subject to provisions of the Copyright Act is also meritless and deserves to be rejected. This is for the simple reason that this Court has jurisdiction to entertain and try the present proceedings as the jurisdiction of this Court to entertain the suit is governed by the ordinary civil law by way of Section 20 of the Code of Civil Procedure, 1908 which reads as under: Section 20. Other suits to be instituted where defendants reside or cause of action arises.--Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions under the law. But that is the basic difference between primary infringement and secondary infringement and both can coexist simultaneously. 91. In the instant case, the defendants are directly involved in violating the rights of the owner and the permission granted by the licensor, thus the defendants acts are prima facie acts of primary infringement. The said defendants are amenable to the jurisdiction of this Court. For the purposes of import, the importer shall be subject to the laws of the country where the articles are imported. There is no amount to extra territorial effect which has been given by this Court while exercising the jurisdiction in the present case. This Court will have jurisdiction to entertain the gamut of the dispute which has been presented before it in all senses. 92. Now I shall proceed with the second part of the discussion which is the applicability of first sales doctrine and its probable impact. First Sales Doctrine and its Impact 93. The Learned Counsel for the defendant Mr. Gupta has made extensive arguments on the applicability of the doctrine of first sale in order to substantiate that the plaintiffs have lost the right to complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that since the importation, for the purpose of renting of these cinematographic films has not been authorized by them in India, the copies are infringing copies. Hence their import would be barred under Section 51(b)(iv). The defendant's argument, however, is that the copies were legitimately purchased in the course of trade; they are rental copies, and can be used for purpose of renting, in India. He says that the device of zoning, whereby the plaintiffs restrict the licensee owner to use it in territories other than what is indicated by them, is artificial, and unenforceable. Such "long arm" conditions are inapplicable. Particular reference is made to the explanation to Section 14, which describes the content of copyright; it clarifies that "For the purposes of this Section, a copy which has been sold once shall be deemed to be a copy already in circulation.+" Though attractive, this contention is unfeasible for more than one reason. The reference to copies in circulation is in the context of copyright in literary, artistic, dramatic or musical work, - not computer programme -(Section 14(a); the statute enables the copyright owner to "issue copies o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e looked into as per Section 51 of the Act while measuring infringement; c) The rights of the owner may be broader than that of the licensee. In the present case, the first sale has been effected by the exclusive licensees plaintiff Nos. 2, 4, 6 and their rights are limited and are subject to the conditions and limitations imposed by the agreement. That being so, the applicability of the first sale doctrine qua the sales effected by the exclusive licensee to the defendants will at best exhaust the rights of the exclusive licensees to complain and not the rights of the owner. The right of the owner to complain for remaining infringement in unauthorised territories for violation of the permission granted and violation of the rights will remain intact. Thus, the applicability of first sale doctrine will partially exhaust the rights of the licencee and not of the owner of the copyright i.e. plaintiff Nos. 1, 3 and 5. b) The applicability of the principle of international exhaustion of rights is doubtful. The said reasoning is based on the argument of the defendants that the plaintiffs will lose all their rights after effecting the first sale to the defendants. To explain the said doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en Section 106(3); 109, 501 and 602 of the US Copyright Act. In the US, there is a clear provision embodying out the "exhaustion" principle. It is said that the US, by virtue of its laws, follows the "international exhaustion" principle, where once a copyright owner places his product in the market, he loses the right to restrict or exercise domain or control over that copy, anywhere, globally. The United Kingdom and European Union countries, on the other hand, follow the "regional exhaustion" principle, which means that once an intellectual property owner places his product in the market, in any EU country, he loses the right to exercise control within the EU markets. However, he preserves the right to place restrictions on the use and further commerce in the product, outside of EU countries. 104. The discussion makes it apparent that the learned single judge has doubted the mode of the applicability of the first sales doctrine in India as per the existing law. The same may lead to partial or regional exhaustion or international exhaustion. As per my opinion, as the express provision for international exhaustion is absent in our Indian law, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner's right to commercially exploit its rights, and for that purpose, partition the market at its convenience. The safeguard provided by Section 51(b)(iv) proviso, in the case of importation of one infringing copy, amply testifies that if importation is for private use of the importer, which specifically alludes to the non-commercial use by such a person or individual, it is not deemed an infringement. 105. The above concerns of the learned Single Judge can be seen in the present case in light of the fact that the licensee after gaining the copies cannot exploit the rights world wide which is, in fact, the owner's right. The same is the situation when the articles have been purchased from the licensee. Thus, Warner Bros. (supra) does not come to the aid of the defendants. 106. The defendants' argument that the first sale doctrine will exhaust the rights of the plaintiffs internationally is incongruous and the same will lead to absurd results in as much as the defendants are the purchasers of the books with notice from the exclusive licensee and not from the owner of the copyright. Accepting the contention of the defendants would again be nugatory to the principle of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yright of the plaintiffs. The defendants have failed to show any prima facie tenable defence in support of their acts. d) The balance of the convenience will lie in favour of the plaintiffs as the plaintiffs will be more inconvenienced if the ex parte injunction granted on 17.9.2008 is not confirmed and the defendants are not restrained from carrying out the infringing acts as against the defendant, who will be less inconvenienced. This is also more so when the defendants have already given an undertaking before US court to not indulge in infringing acts in future. The plaintiffs will suffer irreparable loss if the defendants are allowed to start carrying out their acts at this stage. The defendants will not suffer any such loss at this stage as is obvious by weighing the comparative hardship. 110. To sum up, the plaintiffs have made out a case for the grant of temporary injunction by satisfying the three essentials elements for the grant of injunction. Accordingly, IA No. 11331/2008 is allowed and IA No. 14897/2008 is dismissed. Consequently, the defendants and their agents, assigns and sister concerns, till the disposal of the suit, are restrained from advertising, offering fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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