Case: Gramophone Company Of India Ltd Vs. Birendra Bahadur Pandey &amp; Ors

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 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 w e 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 ou r 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. 14. We have, therefore, no hesitation in coming to the conclusion that the word import in Secs. 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. 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. 15. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 t here 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 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 w e 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 ou r 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 caseWe have, therefore, no hesitation in coming to the conclusion that the word import in Secs. 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. 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.