Banyan Tree may have clarified the import of Section 62 of the Copyright Act, 1957 significantly, yet there seems to be a pervasive opinion that Section 62 vests Indian Courts with unlimited long arm jurisdiction even in strictly and purely extra-territorial situations.
Somehow I am not convinced that Section 62 empowers Indian Courts to seize a matter which would rightly fall within the seisin of a foreign Court. What are the reasons for holding this view?
Even if one did not have the benefit of referring to the view taken by a Division Bench of the Delhi High Court in Banyan Tree, the issue may be approached as follows:
A. Section 62 of the Copyright Act is a provision, which cannot be invoked in the absence of a cause of action arising with respect to the Indian copyright within the territory of India. In other words, it is a stretch of an argument to contend that Section 62 vests Indian Courts with the power to entertain a suit instituted to seek redressal for an act of “infringement” which has been committed outside the territory of India.
B. In other words, a so-called “infringing act” which has been committed outside the territory of India is not an infringement of the Indian copyright, since the copyright granted under the Indian Act is purely territorial in nature. In my opinion, there is no such thing as an “international copyright” under the Indian statute.
C. Further, long-established principles of interpretation of statutes, as applied by Indian Courts with respect to Indian legislations, clearly postulate that the underlying presumption of any Indian statute is always against extra-territorial application of Indian law. For an Indian legislation to have unlimited long-arm jurisdiction beyond Indian shores, there must be an express provision to that effect.
D. There is no such express provision in Section 62 which clearly spells out extra-territorial application. If it is contended that since Section 62 does not link jurisdiction with cause of action, it has an extra-territorial reach, one could extend the argument and prove its inherent fallacy (applying the principle of Reductio ad absurdem).
To prove the fallacy, let’s take a look at Section 20(a) of the Code of Civil Procedure:
Section 20(a) of the CPC:
Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain
Nowhere does Section 20(a) contain a whisper about cause of action. Does this mean it is available for us to argue that a suit may be instituted at the place of residence or business of the defendant, even if the cause of action has not arisen anywhere within the territory of India??? NO!
What I seek to convey is that the default presumption must always be that a legislation can speak of only those acts which fall within the territory over which the legislature holds sway i.e. India. For this presumption to be rebutted, there must be an express provision. In the absence of any such presumption, the statute applies only and only to acts which have been committed within the territory of India.
Is Section 62(2) of the Copyright Act an exception to this rule? Let’s take a look at the provision itself:
62. Jurisdiction of court over matters arising under this Chapter – (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction.
(2) For the purpose of sub section (1), a "district court having jurisdiction " shall notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district court within the local limits of whose jurisdiction , at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.
Sub-section (1) of Section 62 clearly speaks of infringement of a right conferred by this Act. Every legislation typically spells out its scope and extent in Section 1, which reads thus:
“It extends to the whole of India”
This means that what has been granted for enjoyment within the territory of India can be “infringed” only within the territory of India. The consequence of this is that, all that Section 62(2) confers on the right owner, is the power to institute a suit in his own place of residence or business, provided there is a cause of action which has arisen within the territory of India.
This provision is a departure from traditional principles which require the suit to be instituted at the defendant’s place of residence or business or where the cause of action has arisen inside India. This explains the non-obstante clause in Section 62(2) which says “notwithstanding anything contained in the Code of Civil Procedure, 1908”.
In other words, Section 62(2) is merely a limited departure from the principles governing jurisdiction only insofar as it allows the owner of a right under the Copyright Act to institute a suit at a place of his residence or business, provided the right conferred under the Copyright Act has been infringed anywhere within the territory of India.
Therefore, I would think any attempt to seek to apply Section 62(2) to acts which have been committed outside India, amounts to subversion of the provision to suit one’s convenience.
Opinions and Corrections are, as always, welcome!