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

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 O verseas 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 ha ving 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 t o 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 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 appellants 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 Courts order. In the event of any o f 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 Judges 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 trea ties 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 o r 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 la w 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 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 th e 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 courtt is quite t rue 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".

Reasoning: 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.