Gramophone Company Of India Ltd. v. Birendra Bahadur Pandey & Ors.

“BIRENDRA BAHADUR PANDEY & ORS.

* Febraury 21,1984

(0. CHINNAPPA Raber, ES: Vena TaRAMIAS AND R. B.MISRA, 33

: “Copyright Act, 1955—s8, 51 and $3—word *import'—meaning of Charace ,

, ter of arder under s. salt + judicial, ‘

International | Law—Whether becomes part of maunleipal law without aid of municipal statute— Whether override municipal law in care of conflict.

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Imernational Law—Rule regarding right of land-locked states of innocent Passage of goods across another state, a * ‘ ’

Practice—Courts must interpret sian law in a way so as to avoid com

- fromtation with international law, interpretation— Rule of~ While interpreting wor - of ordinary, pore ad rence te dictionaries of no avil, - ;

By treaty and by international convention, India allows transit suc

~ to Nepal, its neighbour and a land-locked country. A company based 9

Kathmandu, Nepal imported 2 consignment of pre-recorded cassettes "7°

Singapore which was awaiting its despatch to iene at Calcutta Port. As ®

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. , % ‘ 2 Be eae 5 . 7 * ~ * GRAMOPHONE CO. y. B. BY. PANDBY - 665

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- appellant company suspected those cassettes to-be unauthorised eepodncdions of * its records and ‘cassettes, “the import of which into India was prohibited, the ,

; appellant-company. moved the Ragistrar of Copyrights for action-under s,53 of

7 the Copyright Act, 1957 which: enables the , Registrar, after: making such en- | " quaries as he deemed fit, to order that copies made , out of india of a work which | if. made i in tndia would infringe copyright, shall not be imported.: As the Regis- “ trar- did not take expénditious action; the appellant-company moved the High Court -by a writ petition. A single Judge made an interim order permitting the

* appeliant-company. to inspect the consignment ‘and if any of the cassettes Were found to have inftinged, the‘ appeliant’s copyright, _they were (0 be kept apart until further orders of the Registrar, The : Registrar’ “was directed to deal with ;

: the application of the appellant-company. in accordance with. law.. The gonsignee preferred an appeal against this order of 'the single ‘Judge. .A Division Bench of

- the ‘High Court allowed the appeal and dismisged the. writ petition of the appellant- company... The Division Bench held | that there was no importation when: the goods ehttred India en route to Nepal.” ‘The Division Bench was of the view, that © the word ‘import’ did not merely ‘meat bringing the goods . into India, but com-

. prebetidled something | more, . that is, “incorporating and. mixing, or “mixing up of, the goods imported with the mass of the property in the Jocal area”. The

.-company obtained special leave to appeal, The questions which arose were :

“ municipal Jaw in case of conflict;. (iii) whether there is any “well established rule’ , of international law on the question | of the right of -land-locked states to inno- -

7 (i) whether interfational law is, of, its own, force, drawn itito “the law of the land without the aid of a municipal ‘statute, ‘iy whether, so drawn, it overrides

"gent " passage of. the goods -across, the:' soil of’ another state; and (iv) what is the meaning of the, word ‘Sport’ useq in 8.53 of the: Copyright Act.

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Allowing, the appeal, =e 2 *, # ro

HELD: yp ,

“ee Theré'can be nb question that Aations must mareh with the imengtiined.s

~ community and the municipal law must respect rales of” “international law even as

" nations respect international « opinion. The comity of nations requires that rules of international: law may be accommodated in the: municipal law even without

“express legislative ~ sanction provided they do not run into conflict: with Acts of |

Parliament. But when they do run into such conflict, the sovereignty ‘and the

_ integrity, of the mepaiilie and the supermacy | of: ne constituted logisintarss: in as . [ : P ue SUPREME COURT REPORTS [984] 2 _ _ . I. Da making the laws’may not ,be “subjected to external rules except to the

+. legitimately accepted by the consituted legislatures themselves, The ian incorporation also recognises the position that the rules of international = of incorporated into national law and considered to be part of the nationay — unless they are in conflict with an Act of Parliament. , Comity of nations gp = municipal Jaw giust prevail in case of conflict, National courts cannot say = if Parliament bas said no to a principle of international law, National Cots will endorse international Iaw but not if it conflicts will nationat law. Nationa{ courts being organs of the national state rad not organs of international law must perforce apply national law if international law conflicts with it, But the courts are under an obligation within legitimate limits, to so interpret the musicipal statute as to avoid; confrontation with the cqmity of nations or the well established principles of international law, But if conflict is inevitable, the leter must yield. {673 E-H]

e

Per Lord Danning MIR in Trendtext Trading Corpm. v. Central Bank, (1977} F All E.R. 881; West Rand Central Gold Mining Co, v> The King, [1905] 2KB 391; Lauterpacht in International Law (General Works); Latham CJ in Politics v, The Commenwealth 10 Commonwealth Law Reports 60; Tractoroexport, Mascow v, Mls, Tarapore & Company and Aur, (1970} 3 SCR 53 refecrod to.

On question (iii).

As the leading authorities on international law expressed diver on the question of the transt rights of Jand-locked countries, the result. that the land-locked countries have tu rely oh bilateral, regoinul or multi-latert) agreements for the recognition of their rights.. The very eaisteace of inaumerabie bilateral treaties, while oo the one band it raises a presumptiog of the existe of & customary right of transit, on the other it indicates the dependence of right on agreement. The most recent 1965 Conveption on Transit ona F Land—Locked States, to which both Nepal and India are signatories, while Pro™ jog for freedom of trausit for the passage of goods between the la fot Mate and the sea, across the territory of @ transit stute emphasize the eae _ *Breement between the land—locked country and the transit country, The bis in

Treaty of Trade and Treaty of Transit entered into between India and Nes! 0 Order to expand trade between the two countries in pructice means Laie Nepal to permit free and unhampered flow of goods needed by Nepal - Jodi and & guarantee of freedom of transit] for goods originating from — Trad across the territory of India to reach Nepal. But the Convention 0”. Trent pe of Land—locked States aad the Treatics between thé two coumtricss ae sch country free to imposg Seceasary restrictions fur the purpose of protectiog -_ has bee gent views ba Pe

= % ; ‘ 2 US 8s GRAMOPHONE CO. ¥. BB. PANDEY = (667°

‘ X —s or artistic property and preventing false marks, false * indications’ of origin ”

tions, . It is clear that for this purpose, it is not necessary that the land—locked * * country should be a party | to the general conventions" ‘along with ‘the transit i ‘country. The: interpretation placed | by John H.B.° “Fried in the Indian Journal of international law that the provisions of the 1965: Convention, ‘permit the, States of

, ‘ , transit to "enforce, say a Copyright or trade: mark convention even if, for example, “ neither the country of origin nor of destination i is ‘party to it appears to be a” “correct ad. : interpretation, [675 B-H] . ; =e oR An artistic, literary or musical forks is the brain-child’ of its author, the of _« -fruic of his labour, and so, considered to be his property, So highly i 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 "scab _ 4 the protection of literary or artisti¢’ works first signed at:Berne on 9th, September,” . 1886 and finally revised at Paris in 1971 provided for protection to the authors of literary and artistic ‘works, The Universal Copyright . Convention first, signed at Geneva on 6th September 1952 and revised in Paris in 1971. requires the contract- \ ing states to providé for the adequate and effective protection of the rights of~ ’ authors and other copyright proprietors in leterary, scientific and artistic ‘works s. including writings, musical, dramatic and einai al wee and paintings eng- . taving and at. [684 G- -H]

> ay “ * . \ ¥ > fe On question Ne. (iv)- ~- 4 "the word simport’ i is not defined it the Copyright Act ‘tough: it is ‘defined a in the Customs Act, But the same wordemay, mean.différent things. in different. * ~y ' enactments and in different contexts: It may even mean different things at different *,

; places in the, samestatute. It ‘all depends on the sense of the provision-where it occurs.

ta Reference to dictionaries is hardly of any avail particularly in the case of words of

“oy ordinary'parlance with a variety of: well-know meanings. Such word. take colour. _ from the context. Appeal-to the Latin root won't help. The avpeeliniaat} be to the sense ‘of the statute. [689 i ; Soe Es . tt

Piss eubectanton that where! teonde are }brought itito the ‘country not for or other methods of unfair competition in order to (further other general conven- ° tiga

— Commerce, but for onward transmission to another country, there can, in law, be .n0 importation, is not acceptable. In the first place, the language of s. 53 does not . justify reading the words ‘imported for commerce’ for the words ‘imported: Nor is sia there any reason to assume thatsuch was the object of {the legislature. While inter-,° - preting the words ‘import’ in the Copyright Act, one must take fnote that while thes a ow. § postive requirement of the Copyright Conventions'i is to protect copytight, Negatively hoo

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668 = SUPREME COURT REPORTS - ial 2 S.oR.

ako, the Transit jrade CGoregeraton and the bilateral Treaty make exceptions enabling the tranait state to take measure to protect Copyright. If this much is borne in mind, it becomes clear that that the word “‘import’in s. 53 of the Copyright Act cannot bear the fatrow interpretation sought to be placed upon it to limit it to

‘import for commerce, It must be interpreted inf a senes which- -will fit the Copyright

Act into the setting of the International Conyeptions. [690 B-E} ‘ * . . . Fs _ . , . oa ' .

The word ‘import’ in seces, 31 and’53 of the Copyright Act means bring- ing into India from outside Tadia’, that it is not limited to importation for com-" merce only,’ but includes fagpiaEGn for transit across the ‘country, This interpretation, far from being inconsistent with any principle of Internationa] Law, is ‘entitely in accord with International Conventions and-the Treaties betwoen India and Nepal. {or H, 692A]~ : a

. fy

The’ ‘High a that goods may be said to be imported | into * ihe coyntry only if there is an incorporation or mixing up of the goods impoited with the mass of the property in the local area, In other’ words the High Court | relied on the Original Package Doctrine’ as enunciated by Chief Justice Marshal] in Browa v: ‘State of Maryland 6 L,Ed. 78. Reliance was- placed by the High “Court upon the decision of this Court in the Central, India Spinning and Weaving & Manifacturing’ Co. -Ltd. The ‘Empress Mills, Nagpur y. The Municlpol Gommittee, Wardha [1958] SCR 1102, That was a case which arose under the CP, and Borar Municipalities Act and the question. was whether the péwer to impose a terminal tax. goods or an‘mals imported into or exported from the limite of a municipality” ‘included the sight to levy- tax on goods .which a ;

neither, loaded or unloaded at: Wardha but were merely Carried across through the

* municipal area’, 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 howgyer —

~-say that the ‘original package doctrine’ on whith reliance was placed was expres- : sly. disapproved first by the Federal Court in the Province of Madras v. Boddu Paidanna : [1942] FCR 90 and again by the Supreme. Court in State of Bangi vi FN. Balsara, [1951] SCR: 682. [699 G-H, 691 A-E] F ae sh e

- Ag ‘order made under s. 53 of the Copyright ‘Act is quasi-judicial. The

, Registrar is not bound to make an order under s, 53 of the Copyright Act $0 Soon © - asan application is presented to him by the owner of the Copyright. Ho has:

naturally to: consider the context of the mischief sought to be prevented. He rhust gonsider whether the cepies would infringe the Copyright if the copies were made

_ in India. He must. consider whether the applicant owns the copyright or the’ . duly authorised agent of the Copyright. He must hear those claiming to be affected if an ordor i is made and. consider any Contention that may be put forward” asan excuse for the import. He may consider any other relevant circumstance. Since all legitimate defences are upen and the‘ enquiry is quasi-judicial, no one can seriously complain. [692E-G] x :

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me re ee ~~ CHUA EDE Renay, I Nepal i is our -eidlibeur, Unfortunately

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(GRAMOPHONE CO. Y. BB. PANDEY (Chinnappa Reddy, J. i. "669

“ OrvtdK pretLars FuntsbICTION: Civil ‘Appeal Nos. 3216-3218 of 1983, o . 6

»

: "| Appéite by Special leave from the Fudgmeht and Order - ‘dated the 10th February, 1983 of the Calcutta High Court in neue Order ec 374- 376. of 1982, ~- ¢ "

~ i s

Soli J. Sorabjee, Harish N. Save, Sudip, Sarkar & B W. Gupta, ‘ a i the Appellant.

Jeyipoiaieat No. ‘J in CA. 3216 of 83... Eo ,

* s F ie.

-. . B. Gupta, ‘S.K. Roy. Chowdhary and HS. Parihar for ‘Respon- :

o dent No. J, in CA. 321718 vf. 1983. No . ' e , x - : * . me ‘ « ’ . . eo, PA. Francis, RN. Podéar for. the Reaagient So

Ty “a . ?

‘Santi Bhushan, SK. Roy Chihdond anidHE.S. Parihar_ for.

K, Parasaranz tiooney | General, Gopa Suibrarsaniam and €. a he, Subba Rao in neEnOIse to notice. ye ; é F 3 e Peep g : 3 a ’

Oceanic Shipping mga P). Ltd. ee % the Judgment ‘of the - was, delivered by ~

“Nepal is land-locked, Nepal’s only access to the sea is‘across India.

are de ‘So,.as one good neighbour to another with a view to | ‘maintain, develop. and strengthen the friendly’ relations’ ‘betweentout two countries, by |

_ treaty and by International Convention, we. allow a tight of innocent ae passage, in’ order to facilitate Nepal’s. international trade. One: of the. - ; eecpacton vefore us is the extent of this wight : Does the right’ ‘cover, the

’ «

G.S. Sanghi,. Shanitar ‘Mitra and P Sinha for Intervener— ee

670 _ SUPREME court REPORTS {1984] 2 s.c.r. ‘transit of: goods which may not be inported into ‘India? May ‘poi which’ may not be brought into India be taken across Indian territory?

What does “import” mean, more particularly what dces “import”.

mean in Sec, 53 of the Copyright Act? Can an unauthorised, repreduc> tion of a literary, dramatic, musical or artistic work ora record em- ...

bodying an unauthorised recording ofa record (which, for short, adopting trade parlance, we may calla pirated work), whcse importation into India may be prohibited, but whose importation into Nepal jis not prohibited, be taken across Indian territory to Nepal? These are some of the questions which arise fer consideration in this appeal.

The questions, - arisen this. way: The appellant, tite Gramo- phone Company of India Limited, is a well-known manufactarer of .

musical records and cassettés. By agreement with the performing - artistes to whom foyalities are paid, the appellant company is the owner of the ‘Copy tight in such fecordings. The appellant received

Information, from the Custom. “Authorities at Caleuttath at a consi gn- ' ment of prerecorded cassettes sent by Universal Overseas Private Lté.

Singapore to M/s. Sungawa Enterpr ises, Kathmandu, “Nepal, had arrived, at Calcutta Port by ship and was awaiting despatch to Nepal. The appellant leasnt that a substantial number of'cassettes were ‘pira-\ 4 ted works’, this fact having comé to light through the byoken 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 thaj copies made out of India cf a work which if made in India would infringe copy right, shal! not ,be

‘. imported, The provision also énables the Registrar to enteg any‘shipe, dock or. premises: where such copits may be found and to examine such, copies. AJ] 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 previsicns -

- of the Custom Act, are to have-effect in respect of these copies. ‘All

_ copies confiscated under the provisicns of the said Act are not to vest -in the Government, but to be delivered to the owner of the copy right in the work. As the Registrar was nct taking expeditions action on the . application of the appellant and as it was apprehended that the pirated | cassettes would be released for transportation to Nepgl, the appellant’ filed a writ application in the Calcutta High Court seeking a writ in ‘the nature of Mandamus to compe! gee Registarar to puss en appropriate order under Sec. 53 of the Copyright Act and to prevent release f a.

t « x

“a GRAMOPHONE CO. Y. B.B. PANDEY (Chinnappa Reddy, J... 671 | . a of the cassettes . from "the custody of the customs authorities, . The learned ‘single judge of the Calcutta High Court, on the request a , of the appellant, issued 'a Rule Nisfand made ait interim order permitt- ‘ing the appellant to inspect thé consignment of casscttes’ ‘and. if any of the cassettes were. thought td infringe the appellant’ s copyright, they ~ were to be kept apatt'until further orders of the Registrar. After causing. _ the necessary inspecticn’ to be made, the Registrar was directed to deal - ° B ‘; ‘with the application under Sec. 53 of the Copyright Act in accordance’ "A with law-after hearing interested parties, The Registrar was directed +” to deal-with the application within eight weeks from the date of the. 4 ™~ High Court's order / In the event of any of 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. C ’ Against the learned Single Fudge’s order, the. consignee. preferred an . appéal under clause 15 of the Letter¥ Patent. A Division Bench of the . + © Calcutta Hi gh Court held that the word ‘import’ did not merely mean bringing the goods into India, but. comprehended something’ more, that . 185: “incorporting and mixing, or mixing up of the goods imported with *_ the' mass of the property in the local area”. /The learned judges thought", -D _. , it would b2 wrong to say that there was importation into India, the mf 4 ¥ moment the goods crossed the Indian customs barrier. Keeping i in view - ° |. the treaties with Nepal, the Divisign Bench took the view that boy ‘there ‘was no importation when -the goods entered India en . route to~-Nep: al. The appeal | was, therefore, allowed and the writ oe / petition: filed by the, present appellant -was dismissed. <And so, the § E ° 7 ed writ petitioner in the High Court ‘has appealed to us, ‘under. ae ofthe = ° Constitution. —_

' % wor <i t

First, we shallexamine if there is any. mandate of: international . law ov if the yules of international law afford us any guidance andif . EF such mandate of guidance is preceptive’ under: Indian law. Two ques- -— ‘tions arise, first, whether international law is, of .its own force, drawn -into thé law of, the ‘land without -the aid of a municipal: statute and, ; second, whether, so drawn, it overrides municipal law 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 G: » other, the doctrine of transformation.") According to the one, rules , of international law are’ incorporated into the law of the land auto-: ae and considered to be part oF the law ‘of the Jand unless in 2

(ty Per | ——¥ “patatey MR ig Trendtext. Trading Conn. ve Cena Bank, ‘Ho 97 4 All ER. 881] ° ; a

672 SUPREME COURT REPORTS © [1984] 2 sic.

: ak . oo 5 conflict with an Act of Parliament. According to the other, rules of -

Tnternational law are not part.of the law of the ldnd, unless already so byan Act of Parliament, judicial decision or long established custom. According to the one whenever the rules of international law changed, they would result ina change of the law of the Jand -along with them, ‘without the aid of an Act of Parliament’. According to the other, no such change would occur unless those principles are ‘accepted and adopted by the dmestic 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 Danziing did ‘so. Lord.Danping himself referred to some old cases. Apart from those, we may refer to West Rand Central Gold

Mining Co. v. The King where the court said:

“Tt is quite true that -Steilenes 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 , me relevant”. | ¢

Lauterpacht in International: Law (Genesal Works) refers to the _ position in-Germany, France, Belgium and Switzerland and says it is the’ same. He quotes what a German Court said to meet an.argument that the role of customary international law conflicted with Art.24 - of the German Code of Civil Procedure. The court “had said, “The ‘legislature of the German Reich did not and could not intend any violation of generally recognised rules ofi nternational Jaw, when enacting Art, 24 of the German Code of Civil Procedure”. Lauterpacht

.refers to another German case where theargument that ‘there ought | .not to be a. direct recourse to the law of natiotis, except in so far as’

there has been formed a Getman customary law’ was rejected with the statement, ‘‘The contention of the Creditor that international law is applicable only in so far asit has been adopted by German Custo- mary law, lacks foundation in law. Such a legal maxim would, mort-

() [19058 KB 391 s

* . a .

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"GRAMOPHONE co. ¥, B. B. PANDEY (Chinnappa Reddy, £ r ad ae if ieEaby applied, lead to the untewuble répalt that in the ve A ~T* tercourse of nations’ with one, another, there would obtain nota uni- ST » form system—international law—but’ a series of more or less diverse. - -* municipal laws" Lauterpacht ' ‘summarises the’ wpositiog % this way 7 2 * “While it is clear that international law may anddoes ~ = BS act directly yyithin the State, ‘itis equally clear that asa rule-that _ ; he .. direct operation of international Jaw is within the State subject . ' to the qverriding authority ‘of municipal law. ‘Courts must apply | 8 _— ~ Statutes even: if they cénflict with international law. The supre- Co “a macy: of international ‘Jaw, lasts, pro foro interno, ‘only so long rr as the State does not expressly and’ unequivocally derdgaté from — a rn .. it. When it thus prescribes a.departure from international law, °°. ~ a conventional or, customary, ‘judges are confrontéed, witha‘. con- » * * flict: of - ‘international law and municipal law and, being organs : appointed by the State, they are compelled to apply the latter”. There can be, no question that 1 satin rar match, jas the : ’ . international comimunity and the Municipal law must respect rules of io International Jaw even as nations respect international opinion, The; - . - ‘+ comity of Nations requires that Rules of International law may be> os *.-¥ accommodated in the Municipal : ‘Law even without express’ legislative, Fa ‘a » Sanction provided they do not run into conflict with Acts of Parliament. Loe E oo “But when’ they do run into such conflict, the sovereignty and the inte- ©) 4 . ee nity of the Republic and the. -supremacy of the. constituted legislatures 8 .. . in making the’ laws may not be subjected.ito external mules except to ‘the 2S Rs ; extent legitimately acceptéd ‘by the constituted legislatures themselves.” .* - _ Fhe doctrine of incorporation also recognises the position that the | ,. me tales of intetndtional Jaw aré incorporated into national law andcon- « |F : __ sidered to be part of the nationial law, unless they.are in copflict with .’.% +. an Act of Parliament. Comity of Nations or no, Municipal. Law.must _ a '

4. prevail incase vf -conflict. National. Courts ‘cannot say yes if Parlia- ye OS “+> ment has said no to a principle of international law. National Courts . will endorse international law but not if it conflicts with national law? ee >2 >. National courts being « organs of.the: National State ‘and not organs. Gs ae _ of international law must perforce. apply, national law if: international fh law conflicts * with it:: But the Courts ate under. an obligation | within : ‘degitimate limits,-to so interpret’ the Municipal “Statute ‘as to avoid , ‘confrontation with the. comity of Nations or the well established prin-

‘ciples of Taternational law. Bat if conflict i is inevitable; the latter must H>-- a yield. - 8 eg ee ea as

SUPREME COURT REPORTS + [1984] 2 s.cr.

. The proposition has been well stated by Latham Chi in Polites v. Commonwealth !

“Byery Statute is to be interpreted and applied, as far as

"its language admits, aS not to -be inconsistent with the comity ‘of nations or with the established rules of international Jaw.:

It must be held that legislation otherwise within the power of the Commonwealth Parliament does not become invalid because sit conflicts with a rule of international law, though every effort Should be made to construe Commonwealth statutes so as t6”

avoid breaches of international law and of intes national comity.

_ The question. ‘therefore, is not a question of the power of the ‘Commonwealth Parliament to legislate in breach’ of international -

Jaw, but is a question whether in fact it has done so’.

The Supreme Court of India has: said practically ‘the same thing

‘D__ in Tractoroexport, Mascow vy. M/s Tarapore & Company and Anr. ©

“Now; as stated in Halsboury’s Laws of England, Vol.. 36, page 414, theré is'a presumption that Parliament does not assert or assume jurisdiction which goes beyond the limits esablished ‘by the gommon consent of nations and statutes are to be inter-7, preted provided, that their language permits, so’as not to inconsistent with the comity of nations cr with the established pririciples -of internaticnal law. But this principle applies only where there is an ambiguity and must give way before a clearly

-- expressed intention. Jf statutory enactments are clear in mean- ing, they must be construed according to their meaning, even law’.

The observations show that ‘the court was only concerned with’ ‘a principle of interpretation, but, by, implication, it may be possible

+ ‘to say that the court preferred the doctrine of incofporation; otherwise the-question of interpretation would not truly asise. What has been : ©

(1) 70 Commonwealth Law Reports 60. 2S : ~ Q) [1970] 3 SCR 53. | : LN though 1 they are contrary. to. Dias pomiity of nations or- international - t ot esl fe . e

’

GRAMOPHONE” co: v. Be 2B. PANDEY (Chinnappa Reddy, VJ. y. 675

. +a in the ‘Leatebtiipi case is entirely coontiekeait ‘with what we have, .

said earlier / nh ae . 22 «(S “Is there any well established principle of, international few on the question of the. right of land—tocked States to innocent, passage of ;

', goods across the soil‘of another State? It appears that “‘the leading ‘a se o.

authorities on international law have CApUsESteS divergent, VIEWS. on the’:

__groun of veiities, ‘a, as, Sibert, Scelle and other's have held the views init these countries have an inherent right ‘of transit across neighbuur- ©

Ag cou atries, other equally eminent ‘authorities, such as, Mc Nair

_. and Hyde have held the view that these rights are not’ principles reco-

~ gnised by international law, but arrangements madé _by sovercign *

States”. © The result of the lack of unanimity has been that the land— locked countries have to rely on bilateral, regional ‘or multi—tateral

“. ”

agiizmzats for the recognition of their rights. The very’ existence «| of innumerable bilateral treaties, while on the one hand. it raises g presumption of the existence of ‘a _customary right of transit, on, the~ -other it¢indicates the de endence of the tight on agreement. The discontenting situation led to’ attempts by nations to codify the rules relat-' ing to- transit trade, The ‘earliest attempt was the Convention on the _ Freedom of ‘Transit kaown generally as the. ‘Barcelona » Cénventioh. ” ‘Phe second attempt was the Convention on the High Sease, 1958. The’ most recent in the 1965 CONVENTION ON TRANSIT TRADE OF. , LANDLOCKED STATES: As this is the latest Conventicn on the” “subject and as both Iidia and, Nepal have signed the Convention, it may be useful to refer to it in some detail. The Convention was ‘the result of a Resolution of the United Nations General Assembly which, “recognising the need of land—locked countries for adequate transit

“+ facilities in promoting international trade’’, invited “the Governments

-of Member States to-give full recoguition to the needs of land—locked M ember—States in the matter of transit trade and therefore; ‘to (accord . them adequate facilities in terms of ‘international law and practice in this regard, bearing in. mind the future requirements: resulting’ from - the economic -develop ment, of. the- land—locked countries’. Ariticle. | (a) of the Convention defines the term ‘land—locked States’ as meaning. ‘any Contracting ‘Siate which has. no sea—cast. The term: “traffic -

>. in Transit” is defined\like this: the passage of goods including unac-

* Sones baggage: across the. territory of a "Contactar State between , ee

” () See R. Makil Transit Rights of Land-locked countries ; - Joucoal of World Trade Law"Vol. 4 Page a : ; f , « te ONG r bors

“676 |. SUPREME COURT ReporTS ¢ [1984] 2 s.c:r. A a land—locked State and the sea when the passage is a portioncof a. PF * 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 transhipment, warehoving, ~_ breaking bulk, and change in the mode of trarisport of such goods as well as the assembly, disassembly or reassembly of machinery and - B bulky goods shall not render the passage of goods outside the definition | , of Straffice in transit” provided that any such operation is undertaken * solely for the convenience of transportation. Nothing in this paragraph- a ‘shall be construed as imposing an obligation on any Contracting State to establish or permit the establishment of permanent facilities.on it territory for such assembly, disassembly or reassembly”; The term” € “transit State” is defined as meaning ‘any Contracting State with or” without a sea-coast, situated between a land—locked State and the . sea, through whose territory “‘traffic in transit”, passes’. ‘Article 2 pres- _ cribes that freedom of transit shall be granted iinder the terms of +~ | this Convention for traffic-in transit and means: of trahsport.. Traffic in transit is to be. facilitated on routes in use mutually | D “acceptable. for transit to the Contracting States concerned, No ‘ discrimination is to b2 exercised based on the ‘place of origin 2parture, entry; exit of destination or-any circumstances relating to ’ the ownership of the goods or the ownership, place of registration or * flag of vessels, land vehicles or other mieans of transport used. Art.3 » « provides for exemption of Traffic in Transit from customs duties or E ‘import ot export taxes or any special dues in respect of ‘transit, within . the transit State. Art. 4 refers to means’ of transport and tariffs. Art. refers to methods and documentation in regard to customs, transport, - - ect. Art. 6 refers to storage of goods in transit. Art. 7 refers to delays or difficulties in ‘traffic in transit. Art. 8 refers to free zones.or other - “« customs facilities. Art. 9 refers to provision of greater facilities. All

“ ag

F that we need mention about Articles 4 to 9 is that details have neces- rr - satily to be worked out by mutual agreement. Art. 10 refers to relation — , to most favoured—nation clause. Art. 11 refers to ‘exceptionns to Convention’ or grounds cf pubtic health, secur't:, and protection. of ; intellectual property. Ti is perhaps usefal to extract the whole of Art 11. k . \ “Bxceptions to Convention on grounds of public ‘health, a og seeurity, an¢ protection of intellectual property 7 H 1. No. Contracting State shall be bund by this Convention to .

ettons transit to persons whose admission into its ssEnntcny is forbidden,

.- ty ie. ve a *

-)

; - GRAMOPHONE Co. v. B.B. ‘PANDEY (Chinnappa Realy, ~ 677 or for goods of a kind of which the: inipoitatiatt is prohibited, ‘ither od “on grounds of public morals, public health, or security or as'a precau-. tion against ‘diseases of animals or: plants : or against pests." ; a,

~ ' © Y 3m w a uF on oe Sey 4 * ‘ *

“2. ‘Bach Contacting State shal! be eet to take : jentonavle .

a . ‘precautions and measures. to ensure that persons _ and -goods, - particu larly godds which are the subject of a monopoly, ‘are really in transit, | :

"ges ~. and that the means of transport are really used for the: passage of such goods, aswell as to protect the satety of the Toutes and means of com-. / * munication, 2 ee

3. - Nothing i in this cansdatian shall affect the. measures ° which

. a Contracting State may be called upon to take. in pursuance of provi-.

rae , ‘sions in a general international convention, whether of a word-wide

, or. regional character, to which. it is a party, whether such convention Pa:

was already concluded on the ‘date of this Convention ” or is conchided later, when such ‘provisions rea :

Ye + s

“@ sto export or import’ or transit of particular kinds of: atticles we. “* * such as narcotics, or other canes aug. or arms; or

(b) . to. proidstion of industrial, litetary or ‘artistic: property, or protection of. trade names, and indications: of source of appellations of origin, and, the suppression of unfair competition.. “i, 3 easy of ge & Nothing. in this Uonveniiin ‘shall prevent any- ‘Contracting. , )- State from taking, any action necessary for the protection of its essential

- 7 - ‘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 ~

"_.> to’ settlement of disputes. Art. 17 refers to signature. Art. 18 refers to a ratification. Art. 19 refers to accession. Art. 20 refers’ to entry in to refers to obligations under -the Convention and rights and' duties of "United Nations Members.. Art. 15 tefers-to reciprocity. Art. 16 refers

“force. Art. 2 refers to revision. Art. 22 réfers to notifications by. the * i R + ait amainaipiiieal And bial 23 refers 1 to authentic texts.

“a. ie ¢

Cc

, 678 - : SUPREME COURT REPORTS — ~ [1984] 2s.cR.

~ “ ‘ 7 é é

- Ttis thus seen that the Convention while providing, for freedom .- * of transit for the passage of goods between a land—locked State and - a the sea, across thle territory of a transit State emphasizes the need for * agreement between the land—locked country and the transit country’

and, more important for our present purposes, it specifices certain exceptions. It is indeed, remarkable that the Convention places traffic ° (illicit) in industrial, literary or artistic property on the same footing as traffic in narcotics, dangerous drugs and afms. This opinion of. the International Cominunity as revealed by the convention must be borne

\ 3 in my mind in. our: further consideration of the gvestion. It'may be, . ™

* interesting to notice here what John ELE: Fried, who. respresented the _ Government of Nepal as one of the members of the delegation at the ~y UN. Conference which produced the Convention, has to say about = * these exceptions. In an article which he wrote in the Indian ‘oumal . of International ‘law, ‘he sa‘d,: 2 ie .

. “The test of a treaty are its exceptions. The proof of a” treaty pudding is, when it cannot be eaten: It is the old problem of finding a balance between demands for saving clauses,and the gnposite claim that the very value of a treaty depends om its . . reliability. For land locked States, conditions under which their outlet to the outside world-may be curtailed can of course te ~ crucial. ~ HE:

The Convention declares exceptions permissible for five reasons : al. ,

. Q) certain we 2ll—specified teasons of public policy; (2) because of overriding international obligations; (3) emergency in the ‘country of .

- transit; (4) in: case of war: (5) protection of its essential security interests. . . fs ; _

- @

4 P ; 2 . . * . se Pa . z * -A few words about each, in view of theire extraordinary impor-. tance. : . 8

1 Binzotion’ for reasons of publ policy. The State of transit may—this -is permissive; not obligatory—proliibit transit of certain goods for the reason that their import into its own territory j is prehitt:

tec, ie (Art. it, Para A): oo —_ “

{a) gtouncs of public morals—e.g., indecent literature;

i Lou i oar | e. , . , wet

¥

GRAMOPHONE CO. vy. B.B. PANDEY (Chinnappa, Reddy, J) 679

' (b): on segandls? of public health or public security; (e, 8. con A ™ ag taminated food or Hi paOpEN, Tanke explosives); ‘ :

(c). as precaution against animal GiSeanes plant diseases-or pests,

This clause (dubbed. at the Conference as the ie dirty’ pictures and. — BB a eG fish clause’ *). will not ‘hamper international trade if properly - : 8 applied. ow nd ge OF os . oy i on 2. The same can ptobably be said of the “measures. ite a. | oO Contracting State may be called upon to take _Cpoutetre: amena a, Cos prendre” in the .equally authentic ’ French version’ which is several ; 3 nickés less permissive) in obedience to ceftain international treaties to which it isa ‘party, namely, ‘treaty Provisions. relating te

A , . ay ’ i . 7 . ny 3 . 2 x

P; . a

é

(a) “export, import or (i) transit of particular kinds of articles. “‘D ’. such as-narcotics, or other dangerotis drugs, or arms”. -* (As to arms.this would therefore orily become operative if ” >» a worldwide or regional treaty prohibiting or restricting 3 international arms trade existed), - * . Sa +8 gee (b) ‘‘protection of industrial, literary or artistic property, or - .* protection of irade names’, and the like ° Je

= 8 : 4 : ‘ By ” ny

These provisions “are notewirthy because they permit the °’ a States of transit to enforce, say acopy-right or trade-mark con: ms vention even if, for example,~ neither the. country of origin nor of = 2 destination ES PATTY 10 ite ciccceleccsccecseeeeccesneeeseepeeescasaeeeecees : Far ‘as these provisions go, transit traffic must not be hampered «°° for any other reason of public policy of the State of transit. If- : , that State forbids importation of certain lixury goods for finan- - .. an. cial reasons, of of certain. textiles to protect its own spinning * 7 ee industry, that is, econdmic reasons, or of shortwave radios for, #3 «> political reasons—all such goods must still’be permitted to pass.. eo by, SS through ‘its § Renatonye oo, @ Fs 3.. Qualified , a Sane a aEeescu sohncwuanneans eee ae

‘ es . te ’ ‘

4 ny

680 a _ SUPREME, COURT - REPORTS. ° [1984] 2 S.0:R.

4. War... vnggeeuestemanasses eae ent i Lopapeayesos PERO Montaneea . = 3 - . og . Sd

5. Protection of essential security interests... /...5..,. 0.000: We may now take a look at the treaties with our neighbour Nepal ‘and the Protocols. First,.the “Treaty of Trade’ which was contracted . “in order to expand trade between their respective territories and - encourage collaboration in economic development”. Art. 2 ‘stipulates that the contracting parties shall endeavour to grant maximum facilities and to undertake all necessary measures for the free and unham- o pered flow of goods, needed by one country from the other, to and ~~

_ from their respective territories. Art. 3-enjoins the contracting parties

-to, accord unconditionally to each other treatment no less’ favourable

‘than that accorded-to any third country with fspect to (a) customs _ duties and charges of any kind imposed oror in comnéction with im- f& portation and exportation and.(b) import regulations including quanti- tative restrictions. Art. 4 provides that the contracting parties should, on a reciprocal basis, exempt from basic customs duty as well as from quantitative restrictions the import of such primary products

‘as may be mutually agreed upon, from each other. Art. 8 casts. a “duty

_ on the contracting pasties to cooperate effectively with each other to preveht infringement and cireumvention of the laws, rules and regula- 4 tions of either country in regard to the matters relating to foreign exchange and foreign trade. Art. 9 specially provides that potwith-

- Standing ‘the earliet provisions of the treaty either Conitacting Par‘y may maintain or introduce such restriction iS aS are necessary for the y purpose of *

. (a) protecting public morals, ®, - Fe -_ ; ; i ’ (b) Protecting human, animal and plant fife, (c). Safeguarding national treasures, ~ , .

(d) ‘safeguarding the implementation of laws relating to the ‘, import aad export of gold and silver bullion, and

GRAMOPHONE Co. ¥. B. ate PANDBY (Chinerpa Reddy, J. )°

© safeaunnding such other, terest as may be inutually agiced Upon oo, gi e

*. Article (10) which may be-extracted. in full is as follows: “Nothing’ ; in this Treaty shall prevent either Conttacting Party from taking any easutes which may be necessary. for the protection of its essential

- security interests or in putsuance of general international - conventions; - whether alteady 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 indication? of - ‘origin ~~ or other methods of unfair competition”.

diz

‘ aPry wh when the passage is a a of a complete j Journey whch . ee va

- 4 +

‘It appears ‘ee us “that the Treaty. of Trade cutter’ itself with

“trade between India’ and’ Nepal and not with trade between Nepal and: s other countries. The provisions. relating to import, export, transit and © ‘and unhathpered, flow of: goods . refer to the import ‘and the ~- - export from one country to another i i.e. from India. to Nepal and from a the free

Nepal to India and to the transit and 1 the free and unhampered flow of goods in the course of trade between the-two countries. “Even

-# aoxt

80, : _express feservation is male to enable each of the: countries, to Impose restrictions for certain purposes, anc to take such medsures as may be. - "necessary for thé protection of essential security, interests and effectua- “ting international conventions relating to opium and ‘other dangerous / drugs‘and also to- effectuate ‘‘general. conventions ‘intended to prevent infringement of industrial, literary | or’ artistic property or relating to

“a

\ .

5 an The’ Treaty of Transit is more mld: Its cou. ‘aad! sequence - | and even’ ‘the language indicate that it is based en the 1965 CONVEN- .

TION ON TRANSIT TRADE OF LAND—LOCKED COUNTRIES.

_ false marks, false indications or origin, or other methods of. unfair : i a eae ae tgp *- - -

The Preamble ' to the treaty mentions ‘that a treaty has been concluded. » - “recognising that Nepal as a Jand—locked country needs access to and

_ from ‘the-sea to promote its international trade, and recognising’ the ‘need ‘to facilitate the traffice. in transit through their territories’. “Art. 3: defines “Triffic in 1 Transit’ and is as foligaks

? - Ma

| “THe term Traffic in, Transit’ neni the vaswige: ef gods! including unaccompanied. baggage, ‘across ‘the territory of a Contracting

~ 7% eo: . vt

H’

5 3 4 i

682 _ SUPREME coURT REPORTS a 1984] 2s.0R.

or terminates within the territory of the other Connantine Pay. The tcanshipment, warehousing, breaking bulk and change in the mode of |.

transport of such goods as well as.the assembly or reassembly of machinery and -bulky goods shall not render the passage of goods cutside the idefinition of “ttaffic in transit” provided any such operation is undertaken. solely for the convenience .of transportation. Nothing in

. the Article shall be construed as imposing an obligation’ on either Contracting Party to establish or ‘permit the establishment of permanent < ° faciliti®S on its territory for such assembly, dis- assembly, or -fe-

CoN

-assembly”: am ee 2

~ Art.} requires the Contracting Parties to accord ‘Traffic in Transit’ freedom of transit across their respective territories through Toutes mutually agreed upon making no destination ‘based on flag of - vesels the places of origin, departure entry, exit, destination, quenenslity: of

' goods’ or vessels.

Att. 4 exempts Traffic in Transit f rom customs duties and trans-. it duties or other charges except reasonable charges for transporta- - tion and such other charges as are’. commensurate | “with the costs of services rendered in iil of such” transit.

’ é

- 4 2 md

Art. Tt requires each of the Contracting Parties 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. 6stipulates 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 inter- ests. 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 genera] conventions intended to prevent infringement of industrial, literary or artistic property or relat- ing to false marks, false indications of: origin or other. methods of * e

‘4 a P : of oo unfair competition.

thy a © ee ; +,

‘The search annexed to the Treaty of Transit contains a’

detailed procedure for the transit of zoods across the territory of India’ en-route from.the Port: of Calcutta. to their Nepalese ; destination. The Protocol + contains detailed. provisions’ to — ensure the goods reaching Nepal and, to. prevent the contingency of the goods escaping into the Indian market while on the oway to Nepal.

“While the Treaty c of Trade génerally guarantees to each of the E

Contracting Parties the free’ and . unhamipered flow of goods. needed

"Ss by oné’country from the other, the Treaty of Transit generally guaran- . "tees to each of the Coritracting Parties freedom of transit across the territcry of the other Contracting Party in respect of “goods. which . have ‘to pass through the territory of such other Contracting party 'to_ . reach the first Contracting: Party , from: outside the territory of the . second Contracting Party. In practice the two treaties-really.mean a guatantee to Nepal -to permit free and unhampered’ ‘flow .of goods ~ needed by ‘Nepal from India and a guarantee of freedom of transit’ .

for goods originating from outside India across the tetritoty of India

‘to reach Nepal. .In the matter‘of payment of customs duties the - ’. Treaty of Trade provides for the most favourable treatment while the ’ Treaty of Transit grants exemption | from such payment. Both treaties contain res€rvations. . There is-a reservation enabling. the imposition of such restrictions as are necessary for the purpose of protecting public .morals, human; animal, and plant life, safeguarding . national treasures, the implementation ‘of laws relating to the .

import and export of gold and silyer bullion. and the: safeguarding of othér mutually agreed ‘interests. ‘There is an express reservation for

., the ‘protection of: essential security interests. There is also provision _ for necessary measures in pursuance ‘df general international conven- ~ tions relating to transit, export of import of articles such as opium or other dangcrous drugs. There . is further - ‘provision for taking - ; necessary measurés in pursuance of general conventions intended to" prevent infringment of industrial, literary and’ artistic ‘property or ’ relating to false marks, false indications of origin or other methods ~ of unfair competition. So, the two treaties “generally assure to Nepal the free-and unhampered flow from India: ‘ahd freedom of transit ” across India, . to goods or of goods :which we may. -Say in the broad

-way are not res extra commercium. In particular ‘the treaties expres- sly contain renee oie enablin g each of we contracting parties to ee. . Oy

SS

GRAMOPHONE CO. ¥. B.B. PANDEY (Chinnppa Reddy,’ J). 683

é $ ; ® , : 2 684 SUPREME COURT REPORTS — {1984} 2 sor.

taken measures in pursuance of general conventions or the i parecer of industrial, literary anti 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 xceptions to protect: ‘industrial, literary or artistic property” and to prevent “false marks, false indications, of origin ot other methods of unfair competition”, pursuant to generat conventions. Neither the ©

International Conveation of 1965. nor the Treaties bétween the two _ nations prohibit tie ‘Imposing ‘of: restrictions for this purpose. On the ._ other hand, they contain reservations to the contrary. So great is the

. concern of the Inrernational 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:

sam? gravity as it views traffic in narcotics, dangerous drugs and arms.

So, the Convention on Transit Frade of Land—locked States and.

the Treaties between the two countries, leave either country free to impose necessry restrictions for the purpose of protecting industrial, litzrary or-artistic prop2rty and preventing false marks, false indications of origin or other methods of unfair competitions in order fo further other genera! converitions. It is clear that for this purpose, it is not necessary that the land-locked conntry should be a party to the general Convention along with the transit country. The interpretation placed by John HLE. Fried that the provisions of the 1965

Convention’ permit the States of transit to enforce, sa; a Copyright © or. trade mark convention even if, for example, neither the country of ‘origin nor of destination is party to it appears to us to be a correct interpretation.

‘ The next step for us to consider is whether there is any y general Convention . qn Copyright. An artistic, . diterary or musical work is the brain-child of its author, the fruit of his labour, and, so, considercd - " tobe 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 Peris-.

"in 1971. Art. 1 of the Convention, as revised, constitutes the countri¢s to which the Convention ‘appliés into a Union for the pr rotection of

“ ad ' i ,

S a eke

¥ GRAMOPHONE co. ve BB. PANDEY (Chinnappa Reddy, Z ) Aas the’ rights of authors in, their literary and attisticyworks: The expression’ ‘literar}. and ‘artistic works’, is" defined to include every production in the literary, scientific and artistic domain whatever may be the ‘inode ‘ or formation ofits 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 protéction of the wort.s. Art. 9 pro- - vides that authors of literary and artistic works protected by the conven- ‘tion 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 récording 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 Att. 16 which provides: rn ta on _

‘ Vo . &” ‘ tee 4

. om “Infringitig capies of a work shall be liable to seizure in “any country of the aio where the work enjoy Yegal protection;

2, The provisions of the aracolieie Paragraphs shail. also apply : to reproductions coming from a country. where the work is not protected — ‘OF, has ce: ased to be ‘protected. ae

. . ‘ 4 ‘ an Sig rs

"3. The seizure shall take place. in accordance with the Legista-. - ton of each country”. India we may. mention isa party to the Berne “ ‘Converition. ~ 8

«

- ‘The Universal Copyright Esavention., which, was first ered in a

..Geneva on September 6,'1952 was revised in Paris. in J971. Each Con- ~ ‘tratting State is called upon to undertake ‘to provide for the-adequate «. and eff-ctive protection of the right of authors and other, copy-right -

" ‘ properietors i in literary, scientific. and artistic works including writings, musical, dramatic and cihematograph works and paintings, engraving and sculpture’. ‘The rights.are. to include the exclusive ‘right to authorise reproduction’ by any means, public performance ‘and broadcasting. Bach 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 af

¢ 4

686- SUPREME COURT REPORTS [1984] 2 s.cr. 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 Berné Union. India is a signatory "to the Universal Copysignt convention also. oN

+ The time is now tipe for us to refer to our own Copyright

Act of 1957. - Section 2(c), (h), (0). (p), (f).and (w) define ‘artistic work’, ‘dramatic’ work’, ‘literary work’, ‘musical work’, toe geaph film’ dnd ‘record’ respectively. Sec. 2(y) defines “work” a " - meaning, any of the following. works,. namely, :

(i) ‘a litérary, dramatic, musical or artistic works;

* + (ii) a cinematograph film; _ ©

(iii) a record. »

4 lf

‘Record’ is defined by Sec. 2(w) to mean ‘any disc. taps, 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 cinematogtaph fiilm. ‘Recording’. is defined, A by. Sec. 2(x) to mean ‘the aggregate of the sounds, embodied in arc, capable of being reproduced by means of a record”. : ‘Inffinging - 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, nfusical 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 “thé exclusive right, by

‘virtue of, and subject to the provisions of, this Act to do‘or' authorise the doing of any ike the following acts: by ubilising the :

record, namely : ; m, fom

. @) ‘to alice any other rec: ord embodying the. same recor- ding; ; . * re,

“+

» ae i ss? . Sections 17 to 21 deal with “Ownership of Copyright and .%, the - rights of the owner’,!:Sections 22 to 29..with ‘Term of Copy- ‘ ‘sight’, Sections 30 to 32,with ‘Licences’, Sections 33 to 36-with »

Use Performing’ Rights - Societies’ y Sections .37 to 39 with. Rights of. s . Broadcasting Authorities, Sections 40 to 43 with International Copy-.

aN wa

| heard in 1 gt

5 3 3 ’

(ii) to cause ‘the seceraling eimbodying in ‘the record to be fe .

a (iii)’ to communicate the recording embodied in the record -

‘by radio diffusion” (Sec. 14(1)(d). ' . . e :

right and Sections -44 to 50. with Registration _ of ‘Copyright. . Seetions 51 to 53 deal with infringe ment of Copyright,

S-~- . Es ¢ » ‘ Not a Sec: 51 states. when Copyright in a work shall be decmed : td be infringed. In particular clause (b) states that Copyright beh aia be deemed to be infringed “when any person— Sm tit se

“(i makes for wait or hire, or sells or ‘lets for - hire, . or by - a “wa bof trade displays or offers for sale or hire, or whinge *, (ii) distributes . either for the purpose of trade or to such "am extent as to affect’ prejudicially the owner of .the copyright, or (iii) by way of trade exhibits in public, or, “4 a — ". (iy) “impoyts (exes for the private ‘and domestic’ usé of, the: jmporter) into India, . , an

Woe ~ -* any infringing copies of the work’. , a

- There i is an explanation. to which it is ‘not negessary, to refer’ H08 ‘the purposes of tis case, .

_ GRAMOPHONE co. v. BB. PANDEY. (Chinmappa Red, J. ) 687, a?

Rs ys a a a

688 SUPREME CouRT REPORTS —s_ [1984] 2 S.C.R.

AD - 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 sieve or any other country is not .one of the excepted acts. . . * _- *See! $3 which is ‘of direct relevance @ it deals.with <importation of infringing copies’ needs to be-fully extracted’. It-says, ¢ 5 soe % , * F . > S ty

“53. (1) The Registrar of Copyrights, on application by the.

C ; owner of the copyright in any work or by this duly authorised agent " ¢ _and on payment. of the prescribed fee, may, after making such in- - -quity as he deems fit, order that copics made cut of India ofthe ~, work which if made in India would infringe copyright shall not be

. 4mported. - 1 ; a: it

} ro¢ oO 2) Subject to any rules iin? under: this Act, the Registrar” of Copyright’: or any person authorised by him in this ‘behalf may’ enter any ship, dock or prernises where any such copies as - are referred to in sub-section (1) may be found and “may examine such copies.- to ar Ps oo bo

(3) All copies to which any prder made under sub-section(1) hk -.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 shal] have effect accordingly; | .

Provided that all such copies confiscated under. the provi- ' sions of: the said Act shall not vest in the Government but shall be . delivered to rue 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 sd ba in India, would infringe Copyright, shall not be imported. This a. ___ . the Registrar may do on the application of the owner of .the .Copy- H right in that work or by his duly authorised -agent on payment of the prescribed fee and’ after making such enquiry, as he deems fit,

. GRAMOPHONE CO. Y. ‘3B.B. PANDEY (Chinnappa Reddy, J) 689

‘The effect of. sites’ an order by the Registrar is to deem all copies to which the order applies to be goods oftwhich the ‘import has been * prohibited or restricted under sec. 11 of the: Customs Act, 1962, cand

' to attract all the provisions'of the Customs \Act on that basis, inclu- --, ding the liability.to be confiscated, with the slight ‘Modification that copies confiscated under the provisions of that Act’ shall not vest in * the Government, but shall be delivered‘to the'owner of the Copy- ' right. ‘ se #, ae ., The: question is wnat docs the word ‘import’ thean i in See. 53.

De aad oats the Copyright Act? The word is not -defined in the Conygie Act though it is defined in the Customs Act. But the’ same word | may mean different things i in different enactments and in diffe-- rent 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*knowr meanings. ~ Such wards take ¢ colour from the context. . Appeal to-the Latin-root.won’t help. The” “appeal must’be to the

_ sense of thé statute. Hidayatullah } in Burmah Shall ete v. Conimercial Tax Officer, [1961] 1 SCR 902 has illustrated how the contextual meanings of the very ‘words: ‘import’ and ‘export’. may - fm Am | We may look at Sec. 53, rather “than ‘elsewhere, to discover os

. 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 > 8, * a _ “Toport, =" its. erinamatical ceaniiion and cognate expression - ‘means bringing into’ lidia from a place outside India. But we “do not propose to have recourse to’ ‘Customs Act to interpret ex-, " pressions in thé Copyright Act even if it is permissible to do so. - because Sec. 53 of the Consniphts ee is made to: run with Sec, “1 of. the Pastas ‘Act, :

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690 | SUPREME COURT REPORTS, ° [1984] 2 s.c.r

It was submitted by the learnet counsel for the respondents that where goods are brought into the country not for commerce, but for onward transmission to, another country, there can, in law, be no importation. It’ was said that the object of the Copyright Act was to prevent unauthorised reproduction of the work or the: unauthorised exploitation 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 ate brought — . in, only to go out, there is no import, it was said. It is difficult pi ' to agree with this submission, thought it did find favour with the ‘Division Bench of the Calcutta High Court, in the judgment under. ~ex_ 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 assum: that such was ‘the object of the legislature. We -have already mentioned the importance attached by International opinion, as manife- _ sted by the various International Conventions and: Treaties, to the protection of Copyright and the gtavity with which traffic in’ ” industrial, literary or artistic property is viewed, treating such traffic on par with traffic in narcotics, dangerous drugs and arms. Jn interpreting the word ‘import’ in the Copyright ° ct, we must take note that while the positive requirement of the Copyright Convention’ 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 clear that the word ‘import? in Sec. 53 of the’ at Copyright Act cannot bear the narrow interpretation sought to be7 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’ Cofieantiins,

. . . - ie ai |

The Calcutta Hight Court thought that goods may be said to . ‘be imported into the 00 only if there is an incorporation or, mixing up of the goods imported with themass of the property in the local area. In other words the High Court ealisd on the original package doctrine’ ds enunciated 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. Hmpress Mills, Nagpur v. The Municipal Conwnittee, Wardha [1958] SCR 1192). That was a case which arese underthe Cif, and Berar Municipalities Act and the question was, whether the:

power to impose ‘ ‘a termina! tax on goods or animals. imported, into.

ye

_ ‘

“GRAMOPHONE CO. ¥. B.B. PANDEY * (Chienappa Ready, #) . 691 | of exported froin the limits of a municipality” ‘included’ the right: “to levy tax on goods which ‘were neither’ loaded’ or unloaded at:

~ learned Judges : to arrive at the-conclusion ‘that they .did, was that

' Wardha but were metely carried across through ‘the municipal area’. -° Fhis 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 vy. State of Maryland 6 L.Ed, 78. Another reason . ‘given by. the

| ager the very levy was a ‘terminal tax’ and, . therefore, the words ‘import ee a a

* Aine.

shy, disapproved. first by the Federal Court i in the Province of. Madras '

_ Court “ta. State . of Bombay v. F.N. Balsara, [1951] SCR.“682,. .. - 7 and export’, in the giyen context, had ‘something. to do with the idea ofa terminus and not an intermediate Siage of a journay. We are afraid the case is really not “of any guidance to us Since in the- con- » text of a ‘terminal tax’ the ‘words’ ‘imported and _ exported’-could. be construed in no other manner than was ‘done by the Court. We- must howéver say that’ the, ‘original package doctrine’ as enunciated by Chief Justice Marshall on which reliance: was placed | was expres- vy. Buddu Paidanna, [1942] FCR 90 and again by the Supreme

Apparently, these decisions .were not brought to the notice of the court which decided the case. of Central India Spinning and ‘Weaving and~ 7

Manufacturing Co. Ltd. The Bmpress Mills N.apur Municipal Com-

Anittee, Wardha: So we derive no help frori this case. As we said, we prefer to-interpret the wordsimport’ as it is found in the Copy- ° “right. Act rather than research. for its meaning by. referring to other od than research statutes where it has been used, . -

‘The “read counsel for the appellant invited our attention to a : Radhakishan v. Union of India : [1965] 2 S.C.R. 213. Shawhney-

~'y.. Sylvania and Laxman, 77 Bom. LR. 380, Bernado v. Collector of Customs Des LR. 1960 Kerala 1.78, 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 (aa ' 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 referchce.to the . history of ‘the Copyright and thé Customs legislations in the United Kingdom and India as

"we do not think it necessar$ | to do so in this case, Ss .

"We have, therefore, no hesitation in coming to the eorietabii that the, word ‘import in ‘Secs. Sl and 53 of the Copyright Act :

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«692 | SUPREME COURT REPORTS [1984] 2° s.c.R.

"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 Régistrar of Copyrights on the application of the owner of the Copyright, but after making such : ‘enquiry as the Registrar’ deems, — fit.. On the order bting made the offending copies are deemed to be goods whose import has been prohibited or restricted under Sec. 11 “~~...

of the Customs Act. Thereupon the relevant. provisions of the ~ a 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.u One fundamental difference between the nature of a Notification’ nder Sec. 11 of the Customs Act and an | tage a _, order made under’ Sec. 53 of the Copyright Act is that.the former is quasi-legislative in character, while the latter is ~ quasi-judicia! -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 Capyright Act. We mention the character of - the order under Sec. 53 to indicate that the effect of an order under Sec. 53. & 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 df the Copyright Act so soon as an applica-__ 2 tion is presented to him by the owner of the Copyright,. He has woe , 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 fade in India. He must consider . . whether the applicant owns the Copyright or is the duly authorised ae agent of the Copyright. He must heag these claiming ‘to be affected “oe -if an order is made and consider any contention that may be put _ forward as an ¢xcuse far the import. He may cotisider any-other | relevant circumstance. ‘Since all legitimate defences are open and the enquiry is quasi-judicial, no one can seriously complain. " 5

‘In the result, the judgment of: the Division Bench isset - °. , 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 a at our r instance, for the assistance given by him.

H.S.K. - . 2 - es Appeal alae.