Phonographic Performance (Ireland) Ltd v Cody

Judgment Date16 February 1998
Neutral Citation[1998] IESC 64
Date16 February 1998
CourtSupreme Court
Docket Number[1990





[1998] IESC 64

Hamilton CJ

Murphy J

Lynch J





Examination of witnesses; viva voce rule; affidavit evidence; infringement of copyright claim; dispute as to title of sound recordings; distinction between evidence going to the issues in the action and evidence of mere formal matters; order sought to have certain facts proved by affidavit rather than on viva voce evidence; whether court has discretion to allow facts to be proved by affidavit; whether "sufficient reason" to depart from viva voce rule; whether defendants bona fide require production of witnesses; whether copyright title main issue or collateral; O.39 r.1 Rules of the Superior Courts Held: Not entitled to depart from viva voce rule (Supreme Court: Hamilton C.J., Murphy J., Lynch J.16/02/1998)- [1998] 4 IR 517 - [1998] 2 ILRM 21

Phonographic Performance (Irl)Ltd. v. Cody




This is an appeal by William Austin Cody and Princess Investments Limited (the Appellants) from the judgement of Mr Justice Keane delivered herein on the 14th day of April, 1994, and the order made thereon on the 20th June, 1994.


In the opening sentence of his judgment Keane J commented upon these proceedings in the following terms:-

"The application by the plaintiffs in this case for certain interlocutory orders is part of a long running legal battle between them and a number of persons and firms who operate discotheques, night clubs and other places of entertainment throughout thecountry."


Obviously the duration of the battle has extended and, worse, intensified since Keane J offered that comment.


The members of the Plaintiff company are all record companies who issue records to the public in this country in the form of vinyl records, cassette tapes and compact dises. The Plaintiffs claim they were established in order to collect revenues, inter alia, from the public performance and broadcasting of their members' sound recordings in this country and to restrain, and to recover damages for, any infringement of the copyright in such recordings. It is their claim that they are the only body established for that purpose in the State. The secondly named Defendant is the owner of the Brandon Hotel in Tralee in which there is a discotheque known as "Spirals". The Plaintiffs say that the Defendants have caused and are causing sound recordings the property of their members to be heard in public at those premises. Prior to the 31st December 1987 the Defendants paid certain charges or remuneration to the Plaintiffs in respect of that facility. Thereafter the Defendants made no payment to the Plaintiffs although they have continued to cause the sound recording to be heard in public at the discotheque. In those circumstances the Plaintiffs claimed in these proceedings a series of injunctions to restrain the Defendants from causing the numerous sound recordings specified in the proceedings to be played in public without payment of equitable remuneration to the Plaintiffs; damages for the infringement of copyright and anaccount of the damages suffered by the Plaintiffs or an account of the profits accruing to the Defendants.


The Defendants pleaded that the Plaintiffs had refused to enter into any negotiations concerning the amount of any "equitable remuneration" payable by the Defendant to the Plaintiffs in respect of such sound recordings. The history of the matter and the attitude of the Defendants would seem to suggest that the proprietors of discotheques were aggrieved by what they perceived as the peremptory demands of the Plaintiffs for non negotiable remuneration in respect of sound recordings in respect of which they claimed to be owners or licensees of the copyright. The Plaintiffs have argued with equal indignation that rights of property to which they and their members were entitled had been flouted or abused by the Defendants. The Plaintiffs interpret the actions of the Defendants in defending the proceedings at all as a device to postpone the payment of royalties or equitable remuneration and in particular believe that in putting the Plaintiffs on proof of their title to the copyrights in question are abusing the process of the Courts. Counsel for each party readily recognises the existence of procedures by which the matters in dispute could be resolved without excessive delay or expense but contends that the failure to adopt such procedure is due to the intransigence and unreasonableness of the other of them. In fairness it must be recognised that alterations in the stance of the parties since these proceedings were instituted eight years ago may be due in part to judicial decisions given in that period which could have caused them to re-evaluate their approach to the issues herein.


The immediate background to the motion heard by Mr Justice Keane was the failure of the Defendants to make an affidavit of discovery within the time limited by the order of theMaster of the High Court made herein on the 20th July, 1993. An affidavit was sworn by them some four months outside the prescribed timelimit.


On the 17th December, 1993, the Plaintiffs' solicitors wrote to the Defendants' solicitors asking for their clients consent to the evidence of certain witness being given on affidavit in the form of draft affidavits enclosed with that letter. On the 2nd March, 1994, the Plaintiffs served on the Defendants notices requiring the Defendants notices requiring the Defendants to admit the facts and documents therein specified without further proof. Against that background the Plaintiffs filed a notice of motion on the 24th January 1994claiming:-


2 (1) An order dismissing the Defendants Defence because of their failure to comply with the order for discovery.


3 (2) In the alternative to (1), an order striking out so much of the Defence as puts in issue the Plaintiffs ownership of thecopyright;


4 (3) In the alternative to (1) and (2), an order permitting the Plaintiffs to establish the matters of fact contained in the draft affidavits specified in the schedule to the notice by affidavit in lieu of oral testimony.


Mr Justice Keane rejected the Plaintiffs' contention that the affidavit of the Defendants was inadequate. He accepted that it was appropriate to postpone the discovery in so far as it related to the issue of damages. In any event he made it clear that he was not disposed to grant the drastic remedy of striking out the Defendants Defence for failure to comply with theorder for discovery. However, the Plaintiffs claimed that relief on another ground. It was submitted that the Defendants should not be allowed to maintain that the Plaintiffs were not the owners or exclusive licensees of the copyright in any of the sound recordings played in the Defendants premises whilst at the same time contending that the amount of remuneration sought by the Plaintiffs was not equitable remuneration within the meaning of the Copyright Act, 1963. Mr Justice Keane preferred the contention of Counsel on behalf of the Defendants to the effect that her clients were entitled, like any defendants, to rely on alternatives defences and in particular were entitled to require the Plaintiffs to prove their ownership of the copyright in the recordings allegedly played by her clients whilst at the same time disputing that the remuneration sought was equitable or that the appropriate machinery for determining such remuneration was under section 32 of the 1963 Act. The decision of the learned trial Judge in that respect has not been appealed by the Plaintiffs and Counsel on behalf of the Defendants...

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