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23 May 2016
In Banyan Tree Holding v A Murali Krishna Reddy the Delhi High Court clarified the importance and scope of the special jurisdiction provision (ie, Section 62 of the Copyright Act 1957). However, there seems to be a school of thought that Section 62 vests Indian courts with untrammelled long-arm jurisdiction even in strictly extraterritorial situations.
Section 62 of the Copyright Act cannot be invoked without a cause of action arising with respect to Indian copyright in India. As such, it is a stretch 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 was committed outside India. In other words, a so-called 'infringing act' which has been committed outside India is not an infringement of Indian copyright, since the copyright granted under the Copyright Act is purely territorial in nature. Arguably, there is no such thing as an international copyright under the Indian statute, except for the recognition of foreign works under the International Copyright Order.
Further, well-settled interpretations of statutes by the Indian courts clearly postulate that the underlying presumption of any Indian statute is always against the extraterritorial application of Indian law. For an Indian statute to have unlimited long-arm jurisdiction beyond Indian shores, there must be an express provision to that effect. Viewed from this angle, no express provision in Section 62 grants these extraterritorial powers. Thus, to contend that jurisdiction under Section 62 does not require the existence of a cause of action in India would be fundamentally flawed since such a view has no basis in the intent and language of Section 62. To prove this, consider Section 20(a) of the Code of Civil Procedure:
"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."
Section 20(a) contains no reference to cause of action. However, this does not mean that a suit may be instituted at the defendant's place of residence or business, even if the cause of action has not arisen in India.
Critically, the default presumption must always be that a statute can speak only of those acts which fall within the territory over which the legislature holds sway. For this presumption to be rebutted, there must be an express provision. In the absence of any such presumption, the statute applies only to acts which have been committed in India. This logic can be applied to Section 62 of the Copyright Act:
"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."
Section 62(1) clearly addresses the infringement of a right conferred by the act.
Statutes typically spell out their scope in Section 1, and the Copyright Act reads as thus: "It extends to the whole of India." This means that a right granted in India can be infringed only in India. The consequence of this is that Section 62(2) confers the power to institute a suit only in the rights holder's place of residence or business, provided that there is a cause of action which has arisen in India.
This provision is a departure from traditional principles which require a 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) – that is, "notwithstanding anything contained in the Code of Civil Procedure, 1908".
In other words, Section 62(2) is a limited departure from the principles governing jurisdiction only insofar as it allows a rights holder to institute a suit at the place of its residence or business, provided that the right conferred under the Copyright Act has been infringed in India. Therefore, any attempt to apply Section 62(2) to acts which have been committed outside India would violate the territorial nature of copyright law and go beyond the manifest scope of the provision itself.
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