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
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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
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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 therefrom, 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 through out 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;
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(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,
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.
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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
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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
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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.
