Peer International Corpn v Termidor Music Publishers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aldous,Lord Justice Mance,Lord Justice Latham |
| Judgment Date | 30 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1156 |
| Docket Number | Case No: A3/2003/0126 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2003 |
[2003] EWCA Civ 1156
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE NEUBERGER
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Aldous
Lord Justice Mance and
Lord Justice Latham
Case No: A3/2003/0126
Mr Christopher Greenwood QC and Mr James Mellor (instructed by Teacher Stern Selby) for the Appellant
Mr David Lloyd Jones QC and Mr Pushpinder Saini (instructed by Sheridans) for the Respondents
In his judgment of 11th December 2002 Neuberger J answered preliminary questions in favour of Peer International Corporation, Southern Music Publishing Company Inc. and Peer Music (UK) Limited. They form part of the Peer group of companies whose parent is Peer International Corporation. There is no need to differentiate between them and I will refer to them as Peer.
In these proceedings Peer sought declarations that they were the owners, alternatively exclusive licensees, of the United Kingdom copyright in respect of certain musical works composed by Cuban nationals. They allege that their rights stem from assignments in writing by the composers and in some instances by their heirs.
The defendants Termidor Music Publishers Ltd and Termidor Musikverlag GmBH & Co KG are part of a German publishing group. They claim to be the exclusive licensees of the copyright in the works pursuant to a licence granted by Editora Musical de Cuba (EMC). EMC is a Cuban entity which claims to own the copyrights in dispute. They were added as Part 20 defendants. They alone appeal against the order of the judge.
Essentially these proceedings are a dispute about the ownership of the United Kingdom copyright in certain Cuban musical works. Peer's claim to ownership depends upon agreements made between the 1930s and the 1950s with the Cuban composers and documents signed in about 1989 or 1990 consisting of "Confirmations" and "Addenda", conveniently referred to as the "Confirmation of rights" documents. EMC's title depends upon the operation of Cuban Law 860 which was passed in 1960.
By an order made on 28th October 2002, Park J ordered that there should be a trial of three preliminary issues. Those issues together with the answers given by the judge were as follows:
Question 1– whether the assignments of copyright relied upon by the claimants were initially valid under the relevant applicable law (without prejudging what such law is) using the following agreements for the purpose of the trial of these issues:
(a) the contract dated 10th December 1936 signed by Antonio Fernandez Ortiz …;
(b) the contract dated 20th June 1940 signed by Antonio Fernandez Ortiz …;
(c) the contract dated 10th October 1930 signed by Ignacio Pineiro …;
(d) the contract dated 12th August 1933 signed by Ignacio Pineiro …;
(e) the contract dated 28th February 1945 signed by Ignacio Pineiro …;
Answer – "The initial agreements were effective to transfer title to the English copyrights in the works to which they extended, subject to the proviso to section 5(2) of the 1911 Act. Consequently, they vested the English copyright in issue in these proceedings in Peer."
Question 2 —The effect of Cuban Law 860 on the above assignment (assuming initial validity), and whether this provision is to be given effect in English law.
Answer – "Law 860 was ineffective to deprive Peer of any such copyrights vested in it."
Question 3 – whether the "Confirmation of rights" documents obtained by the claimants are valid assignments or exclusive licensees of the 1911 Act reversionary copyright under the relevant applicable law (without prejudging what such law is) and using the documents dated 25th August 1998 and 1st July 2002 relating to Antonio Fernandez Ortiz and documents dated 20th August 1999, 12th April 2001 and 15th April 2002 relating to Ignacio Pineiro.
Answer – "Although the Confirmations were not effective to transfer title to the reversionary copyrights vested in the heirs to the composers, they did have that effect when read together with the Addenda.
The trial of the preliminary issues was to be without prejudice to arguments based on facts relating to the circumstances of the assignments to Peer and the related transactions. Expert evidence both written and oral was adduced on Cuban law and there was also provision for written evidence to provide a matrix of fact against which issues of law in relation to Law 860 were to be resolved.
Question 1
It was common ground between the parties that, in order for an agreement to have been an effective assignment of English copyright, it must be effective to transfer the copyright according to English law and must not be invalid by its proper law. Under English law all that was needed was a written and signed agreement which on its true construction effected an assignment of the title to the copyright. It was common ground that all the agreements complied with this requirement of English law.
The judge concluded that the proper law of the first four agreements was Cuban law and that the fifth was the law of New York. No grounds were advanced to suggest that the New York agreement was not effective to transfer title to Peer.
The judge went on to consider the effect of Cuban law at the date of the agreement. He considered the relevant parts of the Cuban civil code and the expert evidence. He concluded in paragraph 41 of his judgment:
"41. … my assessment of the evidence of the two experts confirms Peer's case that there is nothing in Cuban law to invalidate the effectiveness of the Cuban agreements, so far as the assignment of the English copyright is concerned."
The judge concluded that the agreements, were, at least on their face, valid for the purpose of transferring the title to the English copyright of the works they purported to cover from Mr Fernandez and Mr Pineiro to Peer. The sole ground of appeal against that conclusion was not pursued.
Question 2
Question 2 depends upon the effect of the Cuban Law 860 which came into effect in August 1960 after the Cuban revolution which resulted in President Castro coming to power at the beginning of 1959. As EMC rely upon what they contend is the public policy behind Law 860, it is necessary to summarise the relevant evidence before coming to its provisions.
Mr Quenedo was born in Havana in 1918. He is a composer and musician. He said in his witness statement that in the 1930s and 1940s there were groups of musicians in Havana. The problem was that the only money most of them made was small amounts for performances in Cuba. The only person seeking to exploit Cuban music was Peer and the Peer companies controlled all the music that was being exploited in Cuba and throughout the Caribbean. There were complaints of the failure of Peer to account to musicians. He had no understanding of how Peer would or could make money from music. His most pressing problem was survival as he only received a few dollars. In paragraph 17 of his witness statement he said:
"I would not say that my fellow musicians and I were completely uneducated, but none of us would have ever seen a contract of the type signed with Peer. I thought that the only period that I had agreed to be contracted to Peer was the two or three years referred to in the agreement and thereafter the contract ended and I would once again own the rights to my music absolutely. From the conversations I had with many other composers (including the Composers) signed to Peer at the time, I am completely sure that they all had the same or similar understanding."
Mr Delgado was born in 1942. He had no first hand knowledge of the surrounding circumstances between 1930 and 1960. However he did set out the history of EMC.
"8. After the revolution in 1959, legislation prevented foreign companies such as Peer from operating within Cuba. Further, under the Castro government there became a greater awareness within Cuba as to the need to protect Cuban culture generally and control the exploitation of the copyright in Cuban music. The government therefore set about creating its own organisations to administer and control music copyright and publishing. Musicabana, which was by the late 1950's established as the effective representatives of the Cuban musicians and composers, was ideally placed to fulfil this role and in the 1960's Musicabana evolved into EGREM.
9. EGREM was originally created as a record company. It still operates as a record company today and has a couple of recording studios in Havana. Within EGREM however there was a separate publishing department, and from the 1960's onwards EGREM began entering into copyright and publishing agreements with the various Cuban musicians and composers. I am aware that examples of these agreements (as relates to the Composers and the 16 tracks in these proceedings ("the Tracks")) have been disclosed by EMC already.
10. In 1993 the publishing arm of EGREM separated and became an independent company, EMC. Under the terms of separation, EMC took over control of all EGREM's publishing rights."
He went on to say that:
".. the policy behind this law [Law 860] was to re-exert Cuban control over intellectual property rights owned by Cuban nationals and prevent further exploitation of these rights by foreign companies. It is widely understood that the reason why the Castro regime felt that such control was necessary...
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