C.B.S. Songs Ltd v Amstrad Consumer Electronics Plc
|Lord Keith of Kinkel,Lord Templeman,Lord Griffiths,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle
|12 May 1988
|Judgment citation (vLex)
| UKHL J0512-1
|12 May 1988
|House of Lords
 UKHL J0512-1
Lord Keith of Kinkel
Lord Oliver of Aylmerton
Lord Jauncey of Tullichettle
House of Lords
I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Templeman. I agree with it, and for the reasons stated by him would dismiss the appeal.
During the past half-century there have been continuous improvements in sciences and techniques concerned with the transmission, reception, recording and reproduction of sounds and signals. These developments were required for serious purposes such as war, espionage, safety and communications. The benefits of advances made for serious purposes have been employed for purposes of leisure and pleasure and have spawned two flourishing industries, the electronic equipment industry and the entertainment industry. The electronic equipment industry manufactures and sells sophisticated machines which enable individual members of the public to transmit, receive, record and reproduce sounds and signals in their own homes. The entertainment industry transmits and records entertainment on an enormous scale. Each industry is dependent on the other. Without the public demand for entertainment, the electronic equipment industry would not be able to sell its machines to the public. Without the facilities provided by the electronic equipment industry, the entertainment industry could not provide entertainment in the home, and could not, for example, maintain orchestras which fill the air with 20th century cacophony or make gratifying profit from a recording of a group without a voice singing a song without a tune. Although the two industries are interdependent and flourish to their mutual satisfaction there is one area in which their interests conflict. It is in the interests of the electronic equipment industry to put on the market every facility which is likely to induce customers to purchase new machines made by the industry. It is in the interests of the entertainment industry to maintain a monopoly in the reproduction of entertainment. Facilities for recording and reproducing incorporated in machines sold to the public by the electronic equipment industry are capable of being utilised by members of the public to copy the published works of the entertainment industry, thus reducing the public demand for the original works and recordings of the entertainment industry itself. The electronic equipment industry invents and markets new and improved facilities which enable records to be made and copied. The public make use of those facilities to copy the recordings issued by recording companies and thus infringe the copyrights of the recording companies and of the composers, lyricists and others engaged in the entertainment industry. Hence arises the conflict between the electronic equipment industry and the entertainment industry which has resulted in these present proceedings.
This appeal is the climax of a conflict between the makers of records and the makers of recording equipment. The appellants, The British Phonographic Industry Ltd. ("B.P.I."), represent the makers of records while the respondents, Amstrad Consumer Electronics Plc. and Dixons Ltd., represent the makers and sellers respectively of recording equipment. B.P.I. argue that it is unlawful for Amstrad to make recording equipment which will be used by members of the public to copy records in which copyright subsists. In the alternative, B.P.I. argue that Amstrad must not advertise their equipment in such a way as to encourage copying. Amstrad and Dixons argue that they may lawfully make and sell to the public any recording equipment which ingenuity may devise and may lawfully advertise the advantages of such equipment.
By the Copyright Act 1956:
"1(1) … 'copyright' in relation to a work … means the exclusive right, by virtue and subject to the provisions of this Act, to do, and to authorise other persons to do … in relation to that work … those acts which, in the relevant provision of this Act, are designated as the acts restricted by the copyright in a work of that description. (2) … the copyright in a work is infringed by any person who, not being the owner of the copyright, and without the licence of the owner thereof, does, or authorises another person to do, any of the said acts in relation to the work … to which the relevant provision of this Act extends. 2 … (2) Where an original literary, dramatic or musical work has been published, then, subject to the provisions of this Act, copyright shall subsist in the work. … (3) … copyright subsisting in a work by virtue of this section shall continue to subsist until the end of the period of 50 years from the end of the calendar year in which the author died, and shall then expire: … (5) The acts restricted by the copyright in a literary, dramatic or musical work are — ( a) reproducing the work in any material form; …( c) performing the work in public; ( d) broadcasting the work; … 4(1) … the author of a work shall be entitled to any copyright subsisting in the work. … 12(2) … copyright shall subsist … in every sound recording. … (3) Copyright subsisting in a sound recording … shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the recording is first published, and shall then expire. (4) … the maker of a sound recording shall be entitled to any copyright subsisting in the recording. … (5) The acts restricted by the copyright in a sound recording are the following, whether a record embodying the recording is utilised directly or indirectly in doing them, that is to say, — ( a) making a record embodying the recording; ( b) causing the recording to be heard in public; ( c) broadcasting the recording. …"
By section 48 "reproduction" includes a reproduction in the form of a record and "record" means any disc, tape, perforated roll or other device in which sounds are embodied so as to be capable (with or without the aid of some other instrument) of being automatically reproduced therefrom.
Thus a sound recording of a performance of a song with words may involve three or more separate copyrights, each with different periods of duration of not less than 50 years. There is copyright in the composer in respect of his musical work, copyright in the lyricist in respect of his literary work and copyright in the recording company in respect of its sound recording. In the case of Beethoven and Bach and other copyright owners who died more than 50 years ago, the musical works copyright will no longer subsist. In the case of recordings published more than 50 years ago the recording copyright will no longer subsist. But every tape or other copy of a sound recording of a song with words will infringe any subsisting copyrights in the works recorded and in the sound recording.
B.P.I. represent the various owners of copyrights in musical and literary works and in sound recordings. Amstrad make and Dixons sell equipment which makes it possible for sound recordings to be copied on to tape. Any purchaser of Amstrad's equipment who makes use of the equipment for the purpose of copying a sound recording infringes any and all of the subsisting copyrights in the relevant works recorded and in the sound recording
There are broadly two types of infringers who concern B.P.I. First there are "pirates" who make large numbers of copies of a sound recording for the purposes of sale. Pirates do not generally employ the equipment which Amstrad sell to the public but use different equipment which enables the mass production of infringing copies at low cost. The infringing copies are then sold in competition with the original sound recording which has been produced at great expense. With some difficulty but with marked success in this country, B.P.I. and other owners of copyright are able to detect infringing copies offered for sale, to identify pirates by means of Anton Piller orders and then to obtain the remedies of injunction, confiscation and damages.
The second types of infringers are "home copiers," that is to say, members of the public who, by using Amstrad or other machines which are capable of making copies of sound recordings, can copy on to a blank tape for an expenditure of less than £1 an original recording priced at £5 or £10. A home copier makes a copy for his own private use and is thus to be distinguished from a pirate who makes infringing copies for sale. The infringements of a home copier are almost impossible to detect and a successful action for infringement against one copier would have little deterrent effect. The sales of sound recordings in 1984 were estimated at 40 million, and the sales of blank tapes at 70 million or thereabouts. Blank tapes may be employed for purposes which do not infringe copyright but on average for every authorised copy of a record there will now be two infringing copies.
Home copiers are entitled to make copies of sound broadcasts but may, nevertheless, infringe copyright in the works broadcast. By section 14 of the Act of 1956:
"(1) Copyright shall subsist … — ( a) in every television broadcast made by the British Broadcasting Corporation … or by the Independent Television Authority … and ( b) in every sound broadcast made by the Corporation or the Authority. … (2) … the Corporation or the Authority, as the case may be, shall be entitled to any copyright subsisting in a television broadcast or sound broadcast made by them; and any such copyright shall continue to subsist until the end of the period of 50 years from the end of the calendar year in...
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