Phonographic Performance (Ireland) Ltd v The Controller of Industrial and Commercial Property
| Jurisdiction | Ireland |
| Judge | BLAYNEY J. |
| Judgment Date | 01 January 1996 |
| Neutral Citation | 1995 WJSC-SC 5230 |
| Docket Number | 366/389/92,[S.C. No. 366 of 1992] |
| Court | Supreme Court |
| Date | 01 January 1996 |
1995 WJSC-SC 5230
THE SUPREME COURT
Hamilton C.J.
Egan J.
Blayney J.
and
and
Citations:
COPYRIGHT ACT 1963 S31(3)
COPYRIGHT ACT 1963 S14(4)(b)
COPYRIGHT ACT 1963 S17(4)(b)
COPYRIGHT ACT 1963 S32(1)(b)
COPYRIGHT ACT 1963 S32(b)
COPYRIGHT ACT 1963 S17(5)
COPYRIGHT ACT 1963 S29(2)(b)
COPYRIGHT ACT 1963 S32(e)
COPYRIGHT ACT 1963 S31
BROADCASTING AUTHORITY ACTS 1960 – 1979
Synopsis:
COPYRIGHT
Infringement
Music - Recording - Owner - Remuneration - Dispute - Reference - Procedure - Controller - Powers - Broadcasters referred dispute to Controller about past and future remuneration - Reference not conditional upon existence of licence scheme - Copyright Act, G7FG7 1963, ss. 17, 31, 32 - (366,389/92 - Supreme Court - 11/10/95)
|Phonographic Performance (Ireland) Ltd. v. Controller of
Industrial and Commercial Property|
WORDS AND PHRASES
"Remuneration"
Copyright - Breach - Music - Recording - Broadcast - Failure to pay equitable remuneration - Payment in discharge of pre-existing obligation - (366,389/92 - Supreme Court - 11/10/95)
|Phonographic Performance (Ireland) Ltd. v. Controller of Industrial and Commercial Property|
JUDGMENT delivered on the 11th day of October 1995 by BLAYNEY J. [NEM DISS]
These two appeals are concerned with the same important issue of law arising on the interpretation of certain sections of the Copyright Act, 1963(hereinafter referred to as the Act) and were dealt with in a single judgment in the High Court.
In both cases, the respondents, Phonographic Performance (Ireland) Limited (hereinafter referred to as P.P.I.) sought by way of judicial review an order of certiorari quashing the decision of the Controller of Patents Designs and Trademarks (hereinafter called the Controller) to the effect that references by the respective appellants of disputes as to the amount of equitable remuneration payable by them for making use of recordings controlled by P.P.I. had been properly submitted to the Controller under s. 31 subs. (3) of the Act.
P.P.I. was successful in each case in obtaining an order quashing the decision of the Controller and the appellants now appeal against such orders.
Following the course adopted by the learned trial judge, I propose to deal with both cases in a single judgment but, for convenience, I will deal with the issue of law which is common to both in the context of the facts of the case in which Radio Telefis Eireann (R.T.E) is the appellant. These facts may be summarised as follows.
I will start with the detailed description of P.P.I. set out in the affidavit of Oliver Sheridan, the general manager of P.P.I., which grounded the application for leave to apply for judicial review:-
"P.P.I. is a limited liability company incorporated within the State having its registered office at Temple Hall, Temple Road, Blackrock, Co. Dublin. The members of P.P.I. are the record companies who issue to the public in Ireland and elsewhere records of sound recordings (both as defined in the Copyright Act, 1963). P.P.I. was established in order to collect and distribute revenue for the public performance, broadcasting and diffusion of its members sound recordings in the Republic of Ireland and to prosecute, restrain and recover damages for any infringement of the copyright subsisting therein.... The members of P.P.I. have either assigned to the company that part of the copyright which consists of the broadcasting and public performance right in Ireland (hereinafter the "Irish Performing Rights") in their existing and future sound recordings or alternatively have been granted the exclusive licence within the State, to cause, or authorise or forbid or permit any of such members" sound recordings or future sound recordings to be heard in public, or to be broadcast or transmitted to subscribers to a diffusion service. Alternatively P.P.I. act as agents for the owners or prospective owners of the aforesaid copyright in relation to the negotiation or granting of licences to cause such sound recordings to be heard in public or to be broadcast or transmitted to subscribers to a diffusion service."
The sound recordings controlled by P.P.I. in the manner outlined by Mr. Sheridan have for many years been extensively used by R.T.E. which is the authority established under the Broadcasting Authority Acts, 1960to 1979for the purpose of providing a national television and sound broadcasting service in Ireland. The sound recordings used consist of gramophone records, prerecorded tapes and compact discs. R.T.E. was at all times aware of the position of P.P.I. as the corporate body representing the interests of the companies which made the sound recordings and negotiated with P.P.I. in regard to the appropriate amount of equitable remuneration payable for the sound recordings used by R.T.E. in its broadcasts. The attitude taken by R.T.E. was that it was entitled to make use of the sound recordings controlled by P.P.I. provided it paid equitable remuneration. It considered that it was entitled to do this by virtue of s. 14(4)(b) of the Act which provides as follows:-
"(4) The Acts restricted by the copyright in a sound recording are -"
(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."
R.T.E. took the view that provided they paid equitable remuneration, which they were always willing to do, they could broadcast the sound recordings of P.P.I's members without infringing their copyright.
For a number of years P.P.I. appeared to agree with this view. On the 23rd December 1983 it entered into a formal written agreement with R.T.E. in which, referring to the sound recordings controlled by P.P.I., it was recited that "R.T.E. uses such sound recordings in its broadcasts and is entitled so to do by virtue of the Copyright Act, 1963".
The agreement further provided as follows in clause 8:-
a "8(a) In respect of its broadcasting of sound recordings on its radio and television services as hereinbefore described R.T.E. shall by way of equitable remuneration (in accordance with section 17(4)(b) of the Copyright Act, 1963) and exclusive of payment of valued added tax (if payable) pay the following sums to the company:-
For the period 1st April 1982 to 31st March 1983 £210,000.
For the period 1st April 1983 to 31st March 1984 £235,000.
For the period 1st April 1984 to 31st March 1985 £270,000.
For the period 1st April 1985 to 31st March 1986 £290,000.
(Each such period being hereafter referred to as a "year") it being agreed that the payments shall be paid by equal quarterly instalments on presentation of invoice and due for payment on or before the 10th day of the month following the quarter in respect of which the payment is due.
(b) In respect of its broadcasting of sound recordings on radio and television services as hereinbefore described R.T.E. shall pay to the company immediately following the execution of this agreement by way of equitable remuneration (in accordance with section 17(4)(b) of the Copyright Act, 1963) and exclusive of payment of value added tax (if payable) the sum of £185,000 (£6,000 of which has already been paid to the company by R.T.E.) for the period 1st April 1981 to 31st March 1982."
This agreement terminated at the end of March 1986 and thereafter discussions and correspondence took place between the parties with a view to coming to a new agreement. R.T.E. made a number of offers of amounts which they claimed would be reasonable remuneration for the five years up to March 1991 but P.P.I. was unwilling to agree to any of them. However, they still seemed to accept that the only matter at issue was the amount of the equitable remuneration as on the 27th July 1989 P.P.I. wrote to the Controller seeking a reference under s. 31(3) of the Act, which subsection provides as follows:-
"31(3) 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 subsisting 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 opening sentence of the letter sent by P.P.I. to the Controller was in the following terms:-
"We hereby notify you of our intention to make a reference under section 31 of the Copyright Act, 1963 regarding the amount of equitable remuneration payable under paragraph (b) of subsection (4) of section 17 of that Act for the broadcast by R.T.E. of sound recordings the copyright in which is controlled by P.P.I."
P.P.I. did not go ahead with this reference but in the following November R.T.E. referred the dispute to the Controller under the same...
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