Exhaustion: imports, exports, and the doctrine of first sale in Indian copyright law
In this article, I argue that Indian courts have fundamentally misunderstood the doctrine of first sale, and consequently have wrongly held that parallel importation is disallowed by Indian law. I further look at the ingenuity displayed by a court in prohibiting export of low-priced editions from India, and come to the conclusion that this is also wrong in law. Finally, I note that there is an easy way out a way out of this quagmire that we find ourselves in due to judicial inventions: that of accepting a proposed amendment to the Copyright Act.
1 Introduction
Starting from December 2010, there was a policy battle that was fought out over newspapers’ op-eds and blog posts over an obscure part of copyright law known as parallel importation.[^1] A few large book publishers (mostly the Indian offices of transnational corporations, and those who have affiliations to them) objected to the government-proposed amendment to § 2(m) of the Copyright Act, which was meant to clarify the situation regarding ‘parallel importation’ in India. They insisted that it would unleash ‘anarchy’ in the book market,[^2] and got prominent authors to sign a petition directed at the government during the Jaipur Literary Festival. It was unclear whether the authors understood the full implications of what they were signing. One of the signatories, the renowned historian Ramachandra Guha, had in the past written an article praising foreign journals he had found in a second-hand bookshop in Bangalore — which had, it may be added, found themselves in India through parallel importation. Eventually, the large publishers’ lobby managed to convince the Minister for Human Resource Development (whose poetry is published by one of the lobbying publishers) to go against the recommendations of the Parliamentary Standing Committee that had studied the publishers’ objections, rejected them, and recommended the retention