The respondents, India Book Distributors, were distributing, importing or offering for sale 13 of 23 titles as American editions.
The relief of temporary injunction was declined by a single judge on the ground of the US Court’s consent decree.
It was contended by the plaintiff that the importation of American Editions for the purpose of resale is an infringement of copyright.
Importation: The court held that ‘Importation is forbidden unless a license has been given.’ The court said that the above idea needs to be respected as if it is not, then the purpose of granting exclusive licenses would be defeated, as would the idea of the national division of copyright which has been provided for in the International Copyright Convention.
The argument by the defendant was that importation of lawfully published books is not an infringement of copyright under the Act.
The court was dismissed this argument by saying that the owner of copyright has been defined to include an exclusive license.
Copyright is a territorial right and has been regarded as something worth protecting in the ultimate public interest.
[2] The Court, however, in the recent Eurokids[3] decision seemed not to have taken notice of the change in law and followed the reasoning given in the Penguin judgment.
[2] The US believes in the doctrine of first sale which enables the resident of the US to resell legally obtained items without the copyright owner's permission.
In Kirstaeng v. John Wiley & Sons Inc, The US Supreme Court held that the protections and exceptions offered under the copyright act are applicable anywhere and not copies made just in the US.
[4] Europe follows an idea of regional exhaustion where the first sale doctrine applies within the European Economic Area (EEA).