The importation of American editions of books into India without the consent of the exclusive licensee is an infringement of the licensee's copyright.

( 1 ) THE appellants, Penguin Books Ltd of England original plaintiffs brought a suit for perpetual injunction against the respondents, M/s. India Book Distributors of New Delhi, Bombay, Madras, Calcutta (original defendants) restraining them from infringing Penguins territorial copyrights[licence in 23 books, the subject matter of the suit. Admittedly India Book Distributors, Bombay are importing, distributing and offering for sale in India 13 out of these 23 titles. Some of these books arc well known works such as Animal Farm by George Orwell, Far Pavillion, Shadhow of the Moon. both by M. M. Kaye. Some are recent publications such as Celebrity by Thomas Thompson, Lacs by Shiriey Conran.

( 2 ) PENGUINS asked for a temporary injunction in the suit. The application was heard by a learned single judge on the original side of this court where the suit was instituted. He refused the injunction. From his order of refusal Penguins appeal to this court.

( 3 ) THE learned judge formed the view that by reason of the consent decree which was passed by the district court in the United States of America Penguins were disentitled to claim the equitable relief of injunction. What had happened was this. The U. S. Government brought a suit against various publishers, British and American including Penguin:, Inc. , on the complaint that their agreements were in breach of the Anti-Trust: suit ended in aconsent judgment.

( 4 ) CLAUSES V and VI of the consent decree provide as follows

"v. Each defendant is enjoined and restrained, directly or indirectly, from preventing or restricting any purchaser of a lawfully published book from importing or exporting such book to or from the linited States or such purchaser from selling, distributi ng or providing for the resale of such Book to cust omers in United Slates interstate or foreign commerce. "

VI. "nothing in this Final Judgment shall prevent any defendant, in and of itself, from acquiring, granting or otherwise transferring exclusive or non-exclusive copyright rights, or from exercising or authorising the exercise of such rights under the copyright law of any country, including the United Slates, or from the assertion of such other statutory rights as such defendant may have, provided that no foreign copyright law or other foreign statutory right may be used by any defendant to exclude or restrict the importation or resale in the United States of a lawfully published Book

( 5 ) THE learned judge on a construction of these clauses came to the conclusion that Penguins cannot prevent any purchaser of lawfully published books in America from importing them into India. He said : "on a plain reading of the clauses, it is clear that liberty is given to any purchaser in any part of the world to purchase lawfully published books in America and to export them wherever he likes. "

( 6 ) AT one stage Penguins attorney denied the knowledtge of the consent decree. Later on he admitted that that was so. The learned judge was of the opinion that Penguins had not come with clean hands. In any case, he held, they had "cut off their hands" by being a consenting party to the decree. He said : "before anybody approaches the court of equity for discretionary relief, he has to come with clean hands. What to talk of clean hands, the plaintiffs havs already cut off their hands. "

( 7 ) SEVERAL contentions were raised in the appeal. Firstly Penguins argued that the consent decree was not a bar to the assertion of their statutory rights under the Copyright Act, 1957 of India. From the various agreements filed by Penguins it appears that they are the licensees or assignees of territorial rights in the copyright of the subject books as regards India. They being the exclusive licensees it is claimed that Penguins are entitled to restrain India Book Distributors (India Distributors) from importing the parallel American editions of these 23 titles in India. India Distributors deny the title of Penguins. In my