Carrickdale Hotel Ltd v Controller of Industrial & Commercial Property & Phonographic Performance (Ireland) Ltd
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 12 May 2004 |
| Neutral Citation | [2004] IEHC 86 |
| Docket Number | RECORD NO. 2002/350SP |
| Court | High Court |
| Date | 12 May 2004 |
[2004] IEHC 86
THE HIGH COURT
BETWEEN:
AND
Citations:
COPYRIGHT ACT 1963 PART III
PHONOGRAPHIC PERFORMANCE V CONTROLLER OF INDUSTRIAL PROPERTY 1996 2 IR 560
COPYRIGHT ACT 1963 S17
COPYRIGHT ACT 1963 S17(4)(b)
COPYRIGHT ACT 1963 S17(5)
COPYRIGHT ACT 1963 S31(3)
COPYRIGHT ACT 1963 S41(1)(B)
COPYRIGHT ACT 1963 S41(3)
COPYRIGHT ACT 1963 S40
INTOXICATING LIQUOR ACT 2000
PUBLIC DANCE HALLS ACT 1935
MURPHY V MIN DEFENCE 1991 2 IR 161
COPYRIGHT ACT 1963 PART II
COPYRIGHT ACT 1963 S22(4)
PERFORMING RIGHTS SOCIETY LTD V THE BRITISH ENTERTAINMENT DANCING ASSOCIATION LTD 1993 EMLR 325
ASSOCIATION OF INDEPENDENT RADIO CO LTD (AIRC) & ANOR V PHONOGRAPHIC PERFORMANCE LTD 1993 EMLR 181
BRITISH SKY BROADCASTING LTD (SKY) & ANOR V PERFORMING RIGHTS SOCIETY LTD 1998 ELR 193
INDEPENDENT TELEVISION CO ASSOCIATION LTD (ITCA) & INDEPENDENT TELEVISION NEWS LTD V PERFORMING RIGHT SOCIETY LTD UNREP
US V ASCAP 1993 1 TRADE CASES 69644
REFERENCE BY AUSTRALIAN PERFORMING RIGHT ASSOCIATION LTD UNDER S154 OF THE COPYRIGHT ACT 1968 1992 25 IPR 257
ROME CONVENTION ART 12
ROME CONVENTION ART 1
DIR 92/100/EC ART 8.2
DIR 92/100/EC ART 14
COPYRIGHT & RELATED RIGHTS ACT 2000 S205
COPYRIGHT & RELATED RIGHTS ACT 2000 S208
COPYRIGHT & RELATED RIGHTS ACT 2000 S208(1)
COPYRIGHT & RELATED RIGHTS ACT 2000 S205(2)
CLARKE IRISH COPYRIGHT & DESIGN LAW ISSUE 2 MAY 2003 E1023
AMERICAN SOCIETY OF COMPOSERS, AUTHORS & PUBLISHERS (ASCAP) V SHOWTIME/THE MOVIE CHANNEL 912 F 2D 563
MINISTERE PUBLIC V TOURNIER 1989 ECR 2521
BASSETT V SACEM 1987 ECR 1747
TREATY OF ROME ART 86
SENA V NOS C 245/00
AEI REDIFFUSION MUSIC LTD V PHONOGRAPHIC PERFORMERS LTD 1998 RPC 335
BRITISH AIRWAYS PLC V PRS 1998 RPC 581
PPL V VIRGIN RETAIL LTD (VR) 2001 EMLR 139
COPYRIGHT ACT 1956 (UK)
COPYRIGHT ACT 1963 S21(2)
Synopsis:
Miss Justice Laffoy delivered on 12th May, 2004 .
The background to these proceedings is a long running dispute between certain owners of nightclubs and discotheques who are members of the Irish Hotels Federation (IHF) and the Irish Nightclub Industry Association (formerly known as the Irish Dance and Entertainment Industry Association) (INIA), on the one hand, and the second named defendant (PPI), on the other hand. PPI, which is a limited company incorporated in this State is, in effect, a collective organisation of record companies, fox example, Sony Music, which produce records, compact discs and such like of sound recordings. In broad terms the function of PPI is to protect the interest of the record companies as owners of copyrights subsisting in sound recordings, formerly by virtue of the provisions of Part III of the Copyright Act, 1963(the Act of 1963) and currently by virtue of the Copyright and Related Rights Act, 2000(the Act of 2000), which came into force on 1 st January, 2001. That function is fulfilled in party by collecting, on a collective basis, the remuneration payable by copyright users who cause a sound recording or a reproduction thereof, inter alia, to be heard in public or to be broadcast, on behalf of the record companies and distributing it amongst them.
The dispute has been ongoing since 1988. In fact it has been going on for so long that these proceedings are in something of a time warp. Since the dispute started and the matters at issue became the subject of the dispute resolution mechanism proved for in the Act of 1963 the repeal of all of the relevant sections of that Act has become operative by the coming into operation of the Act of 2000. Notwithstanding that, these proceedings have been commenced and prosecuted on the basis that the Act of 1963 still governs the issues. This judgment reflects that position.
One aspect of the dispute was resolved by the decision of the Supreme Court, delivered on the 11 th October, 1995, in two judicial review proceedings which were heard together and are reported as Phonographic Performance v. Controller of Industrial Property [1996] 2 I.R. 560 (the Judicial Review proceedings). At issue in those proceedings was the interpretation and application of certain provisions of the Act of 1963. Section 17 of the Act of 1963 deals with copyright in sound recording. Subs. (4) of that section sets out the acts which are restricted by the copyright in a sound recording, including –
"(b) in the case of a published recording, causing the recording or any reproduction thereof to be heard in public, or to be broadcast, or to be transmitted to subscribers to a diffusion service, without the payment of equitable remuneration to the owner of the copyright subsisting in the recording …"
Subsection (5) of section 17 provides as follows:
"Where —"
(a) either party to a dispute in relation to the amount of remuneration payable under paragraph (b) of subsection (4) of this section undertakes to refer the dispute to the Controller under section 31 of this Act, and
(b) an undertaking has been given to the owner of the copyright subsisting in the recording by the other party to the dispute to pay to him the amount of remuneration determined under the said section 31,
the copyright in the recording is not infringed on the ground of non-fulfilment of the condition specified in the said paragraph (b)."
Subsection (3) of section 31 provides as follows:
"Where a dispute arises between a person who causes a sound recording, or any reproduction thereof, to be heard in public, or to be broadcast, and the owner of the copyright existing in the recording regarding the equitable remuneration payable under paragraph (b) of subsection (4) of section 17 of this Act in respect of the recording, the dispute may be referred by either party to the Controller who shall consider the case and either determine the amount of the remuneration so payable, or refer the case to an Arbitrator in pursuance of the provisions of section 41 of this Act, for such determination."
The Supreme Court decided that, on their proper construction, the foregoing provisions envisage the equitable remuneration payable by the copyright user to the copyright owner being paid after the recordings have been utilised. In the event of a dispute as to the amount, provided an undertaking is given by the other party to the owner of the copyright to pay the amount determined under s. 31, the copyright is not infringed. One of the bases on which Blayney J. arrived at those conclusions is set out in his judgment at p. 570 as follows:
"Finally, it seems to me that the use of the word “remuneration” implies that the payment is to be made after and not before the event. The basic meaning of the words “to remunerate” is “to pay for service rendered”. So, “remuneration” is a payment for a service which has been rendered in the past — in the present case the facility of utilising PPI's published recordings. It follows that it is only after a recording has been utilised that there can be an obligation to pay remuneration."
In summary, the decision of the Supreme Court determined when equitable remuneration is to be paid in accordance with s. 17(4) (after the use of the copyright), and the course to be adopted to avoid a breach of copyright (either to pay agreed equitable remuneration subsequent to use, or, in the event of a dispute as to the amount of the equitable remuneration, to undertake to make a reference under s.31(3) to the first named defendant (the Controller), and to pay the amount determined under that provision). The Supreme Court recognised that the copyright owner and the copyright user could enter into an agreement in respect of future periods.
The nightclub owners remained in dispute with PPI as to the proper quantum of equitable remuneration. The practice of PPI is to publish a Tariff Book annually, setting out what is considered the appropriate tariff payable by way of equitable remuneration by the various categories of copyright users who use its repertoire. Tariff No. 2 is described as pertaining to the public use of sound recordings as "specially featured entertainment" in "commercial discotheque and nightclub venues". The nightclub owners who have been in dispute with PPI contend that since 1988 the rate of tariff claimed by PPI is excessive, unfair and inequitable.
The plaintiff is the owner of a nightclub known as "Laceys" in Co. Louth. It is a member of IHF and INIA. It has been in dispute with PPI since 1991, or earlier, as to the amount payable by it by way of equitable remuneration for use of the PPI repertoire. On 12 th November, 1991 it gave an undertaking to PPI in accordance with s. 17(5) of the Act of 1963. On 11 thDecember, 1991 it referred the dispute in relation to "Laceys" to the Controller. Following the final determination of the Judicial Review proceedings, which had been commenced in October, 1991 and in which PPI had sought orders quashing a decision of the Controller to proceed with a reference under s. 31(3) in relation to another nightclub, the Controller decided that the references in relation to nightclubs should be dealt with under s. 41(1)(b) of the Act of 1963. That...
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