Gormley v EMI Records (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: BARRONJ.
• Judgment Date: 01 January 1999
• Neutral Citation: 1998 WJSC-SC 7544
• Date: 01 January 1999
• Docket Number: [1993 No. 6916P; S.C. No. 356 of 1997]
• Court: Supreme Court

1998 WJSC-SC 7544

THE SUPREME COURT

Barrington J.

Murphy J.

Barron J.

356/97

GORMLEY v. EMI

PAULINE GORMLEY

Plaintiff

and

???LIMITED???

Defendant

Citations:

COPYRIGHT ACT 1963 S2(1)

COPYRIGHT ACT 1963 S3(4)

BERNE CONVENTION ART 2(2)

GREEN V BROADCASTING CORP OF NEW ZEALAND 1989 RPC 469

UNIVERSITY OF LONDON PRESS LTD V UNIVERSITY TUTORIAL PRESS LTD 1916 2 CH 601

COPYRIGHT ACT 1988 S3 (UK)

COPYRIGHT ACT 1988 S3(1) (UK)

COPYRIGHT ACT 1988 S3(2) (UK)

COPYRIGHT ACT 1988 S3(3) (UK)

WALTER V LANE 1900 AC 539

MACMILLAN & CO LTD V COOPER 40 TLR 186

LADBROKE (FOOTBALL) LTD V WILLIAM HILL (FOOTBALL) LTD 1964 1 WLR 273

INTERLEGO AG V TYCO INTERNATIONAL INC 1988 RPC 343

JOY MUSIC LTD V SUNDAY PICTORIAL NEWSPAPERS (1920) LTD 1960 2 QB 60

COPYRIGHT ACT 1963 S8(1)

Synopsis

Copyright

Intellectual property; copyright; original literary work; sound recording; copyright claimed in respect of biblical stories which the plaintiff told in a school class as a child; teacher recorded stories told by plaintiff and hundreds of other children and these were later broadcast and produced commercially on a tape; whether the words spoken by the plaintiff were an original literary work; whether the words were original; whether the work can obtain protection without being written down; definitions of "literary work" and "notation" considered; whether writing must be something which is visible; whether the recording must be done by the author; whether the expression "other material form" can apply to literary work; whether the originality subsisted in the sound recording or in the literary work; whether there was the necessary skill, labour and judgment to create a new work; ss. 2(1),3(4), 8(1) Copyright Act, 1963; Article 2(2) Berne Convention

Held: No copyright in the words spoken; not a literary work; no originality in the way the plaintiff related the story; appeal refused

Gormley v. EMI Records (Ireland) Ltd. - Supreme Court: Barrington J., Murphy J., Barron J. - 17/11/1998 - [2000] 1 IR 84 - [1999] 1 ILRM 178

A tape recording is not entitled to protection as a literary work, as the Copyright Act, 1963, provides that an original literary work must be written. Originality does not require a work to be unique, merely that there should have been original thought. There could be no copyright in a well-known plot or story, even though it might be unconsciously narrated in different words.

In this case, the plaintiff was aged six or seven and in the First Holy Communion class in Rutland Street national school in Dublin. Her teacher was a Mrs Cunningham, who taught Bible stories to her pupils, then recorded the children as they retold the stories to the whole class. The tapes were later used, with Mrs Cunningham's permission, in a religious radio programme. Subsequently, the defendant produced a commercial tape of the stories, which included the plaintiff reciting a Bible story.

The plaintiff claimed copyright in the story, on the basis that her words were a literary work within the meaning of the Copyright Act, 1963.

The two issues of law considered by the court were whether the work could obtain protection, although it was never written down, and whether the work was original.

Refusing the appeal, the court said that the plaintiff was not seeking to produce a new work, but to reproduce what she had been taught by her teacher. The charm of the work belonged to the recording, not to the literary work, and the copyright in the recording belonged to Mrs Cunningham. It was not the language which created the copyright, but the creativity, which lay in the way Mrs Cunningham had explained the stories to the children.

1 JUDGMENT d??? 1998 17th November 1998by BARRONJ.

2 This is a claim by the plaintiff to copyright in a Bible story "And then there were twelve". At the time of the recital by her of the story the plaintiff was aged between six and seven years and was a pupil in the FirstHoly Communion class in Rutland Street National School. The teacher of that class was a Mrs. Cunningham who taught in that school for forty-four years commencing in the mid-1940s.

3 Mrs. Cunningham's method of teaching Bible stories to her pupils was to tell them in words which her pupils would understand and then to require them to retell the stories before the whole class. No doubt not a particularly unusual method of teaching. However, Mrs. Cunningham's method was unusual in that when her pupils were retelling the stories she used a tape recorder to record what they said. In the course of her period of teaching at the school it appears that she recorded literally hundreds of stories as they were retold by her pupils.

4 The plaintiff told the story "And then there weretwelve" in the year 1961. Many years later a well known broadcaster, Fr. D'Arcy, found one of the tapes of the recordings made by Mrs. Cunningham. He wasinterested in broadcasting it and having made enquiries discovered that it was only one of a very large number. He obtained the permission of Mrs. Cunningham to use them as part of a religious radio programme. Subsequently the defendant became aware of this programme and of its source material, and decided to use it to produce commercially a tape of several Bible stories spoken by the children. This they published.

5 Its title was "Give up yer and sins". There were two sides to it one of which included the plaintiff reciting the story entitled "Then there were twelve" This was the same recording which Mrs. Cunningham had made many years before when the plaintiff was a child of six or seven. Although the defendant had obtained permission from Mrs. Cunningham and had recognised her copyright it had made no effort to obtain the permission of the children whose voices were recorded. This action arises from the claim by the plaintiff that the words which she spoke on the tapewere a literary work within the meaning of the Copyright Act, 1963and that accordingly, they could not be reproduced without her permission which was neither sought nor given.

6 The questions which arise for decision in the present case are whether the words of the story as recited by the plaintiff on the tape constitute an original literary work. If they do not, then the plaintiff is not entitled to protection. Two main issues of law arise:

7 (1) Whether the work can obtain protection although it was never written down; and

8 (2) whether the work was original.

9 In dealing with the first question, it is necessary to refer to some definitions contained in the act as well as to a dictionarydefinition.

10 S. 8(1) of the Copyright Act, 1963( "the Act") provides:

"Copyright shall, subject to the provisions of this Act, subsist in every original literary, dramatic or musical work..."

11 The Act does not contain a definition of "original".

12 S. 2(1) of the Copyright Act, 1963provides that except in so far as the context otherwise requires "literary work" includes any written table orcompilation.

13 S. 3(4) provides that:

"References in this Act to the time at which, or the period during which, a literary, dramatic or musical work was made are references to the time or period at or during which it was first reduced to writing or some other material form.".

14 Writing is defined by s. 2(1) as including "any form of notation, whether by hand or by printing, typewriting or otherprocess".

15 The definition of notation in the Concise Oxford Dictionary is "the representation of numbers, quantities, pitch and duration etc. of musical notes, etc. by symbols; any set of such symbols; a set of symbols used to represent chess moves, dance steps etc.; arecord".

16 From these definitions the plaintiff submits that the trace on the magnetic tape amounts to a notation and also comes within the words "other material form". The defendants on the other hand maintain that writing must be something which is visible.

17 The use of the word "record" in the dictionary definition of "notation" does not advance the plaintiff's case. It is not referring to a sound recording, but a record in a particular form of what is to be retained, the record being made in one of the ways indicated all of which can be read.

18 There is no authoritative decision as to what is meant by "other material form" in this regard. The plaintiff relies upon Article 2(2) of the Berne Convention as passed at Paris on the 24th July 1971. It is as follows:

"It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form."

19 Support is to be found for the plaintiff's proposition in the textbooks. These were referred to in the judgment of Somers J. in Green v. Broadcasting Corporation of New Zealand 1989 RPC 469. He said at p. 477:

"There is much force in the submission that writing is but one method of giving a work the degree of certainty necessary to justify themonopolyconferred by the Act and that the same security can be obtained by fixing it in other tangible forms. The point has not, so far as I am aware, been the subject of any considered decision but has the support of writers of textbooks - see Copinger and Skone James on Copyright (12th Ed. 1980) para. 164: Laddie, Prescott and Vitoria. The Modern Law of Copyright (1980) paras. 2.12 and 2.14 - 2.17; Ricketson, The Law of Intellectual Property (1984) paras. 3.13 and 5.36. Assuming it to be correct, however, I do not think it advances the appellant'scase."

20 Each of the three textbooks recognises the problem as to whether writing is necessary for a literary work. And each in its own way suggests that it may not be.

21 In the same case Casey J. said at p. 484:

"I incline to the view that s. 3(8) - (the same ass. 3(4) of the Act) - evinces a clear indication that copyright can exist in material forms other...