Peer International Corporation v Termidor Music Publishers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindsay |
| Judgment Date | 16 November 2006 |
| Neutral Citation | [2006] EWHC 2883 (Ch) |
| Docket Number | Case No: HC0003960 |
| Court | Chancery Division |
| Date | 16 November 2006 |
[2006] EWHC 2883 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindsay
Case No: HC0003960
and
Pushpinder Saini and (as to succession) Simon Taube QC (instructed by Sheridans) for the Claimants
Peter Prescott QC, James Mellor and (as to succession) Michael O'Sullivan (instructed by Teacher Stern Selby) for the Part 20 Defendant
Hearing dates: 2005 May: 10, 11, 12, 13, 16, 17, 18, 25 2005 September: 26, 27 and 28 (in Cuba)
October: 14
January: 26
March: 6, 7, 8, 9, 10, 13, 16, 17, 20, 21, 24
May: 2, 22, 23, 24, 25
October: 30
Approved Judgment
Schedule
Mr Justice LindsayA. Introduction
| Song No. | Title of Work | Composer | Date of Composer's death | 1911 Act reversion begins | Date of alleged Original Agreement | Law applicable to the original agreement * = express | Date of the EGREM intervention | Date of the EMC intervention | Date of alleged Further Dealings |
| (1) | Aurora | Manuel Corona | 9.1.50 | 1975 | 27.2.30 | * Mex | 14.6.2000 | No claim | |
| (2) | Cuidadito Compay Gallo | Antonio Fernandez Ortiz (Nico Saquito) | 4.8.82 | 2007 | 10.12.36 | * Cub | 3.5.60 | 14.6.2000 | 25.8.98 and addendum dated 1.7.02 |
| (3) | Compay Gato (aka Adios Compay Gato) | Antonio Fernandez Ortiz (Nico Saquito) and M. Sanchez | 4.8.82 5.6.91 | 2007 | 16.10.45 | Cub | 3.5.60 | 14.6.2000 | 25.8.98 and addendum dated 1.9.02 and deed of 1.6.04 for Sanchez |
| (4) | Al Vaiven De Mi Carreta | Anthonio Fernandez Ortiz (Nico Saquito) | 4.8.82 | 2007 | 20.6.40 | Cub | 14.6.2000 | 25.8.98 and addendum dated 1.7.02 | |
| (5) | Diablo Tun Tun, El | Bienvenido Gutierrez | 5.12.66 | 1991 | 11.2.33 and 25.7.58 (in respect of the reversion) | Cub | 15.2.62 | ||
| (6) | Damelo | Ignacio Pineiro | 12.3.69 | 1994 | 10.10.30 | Cub | 22.9.2000 | 20.8.99 and 12.4.01 and addendum of 15.4.02 | |
| (7) | Buey Viejo | Ignacio Pineiro | 12.3.69 | 1994 | 12.8.33 | * N.Y | 13.1.64 | 22.9.2000 | 20.8.99 and 12.4.01 and addendum of 15.4.02 |
| (8) | Echale Salsita (aka Echales Salsito) | Ignacio Pineiro | 12.3.69 | 1994 | 12.8.33 | * N.Y | 13.1.64 | 22.9.2000 | 20.8.99 and 12.4.01 and addendum of 15.4.02 |
| (9) | Esas So Non Cubanas | Ignacio Pineiro | 12.3.69 | 1994 | 28.2.45 | Cub | 13.1.64 | 22.9.2000 | 20.8.99 and 12.4.01 and addendum of 15.4.02 |
| (10) | Guanajo Relleno, El | Ignacio Pineiro | 12.3.69 | 1994 | 12.8.33 | * N.Y | 13.1.64 | 22.9.2000 | 20.8.99 and 12.4.01 and addendum of 15.4.02 |
| (11) | Mentira Salome (aka Mentiras Salome) | Ignacio Pineiro | 12.3.69 | 1994 | 12.8.33 | * N.Y | 13.1.64 | 22.9.2000 | 20.8.99 and 12.4.01 and addendum of 15.4.02 |
| (12) | Rumberos De La Habana, Los | Ignacio Pineiro | 12.3.69 | 1994 | 12.8.33 | * N.Y | 22.9.2000 | 20.8.99 and 12.4.01 and addendum of 15.4.02 | |
| (13) | Borinquen | Ignacio Pineiro | 12.3.69 | 1994 | 12.8.33 | * N.Y | 13.1.64 | 22.9.2000 | 20.8.99 and 12.4.01 and addendum of 15.4.02 |
| (14) | Romance Guajiro | Celia Romero | 12.10.67 | 1992 | 28.2.42 | Cub | 26.4.64 | 23.7.99; 19.8.02 and addendum of 19.8.02 |
This action concerns the English copyright in thirteen musical compositions (for brevity I shall call them “songs”) written in a Cuban style. The songs were written by Cuban nationals, the first in time in 1930, the last in 1945. The titles of the songs and the names of their respective seven composers (one work having joint composers) are set out in the Schedule annexed to this judgment. I will usually refer to a song by the number I have given it in the Schedule's left hand margin.
The Mechanical Copyright Protection Society Ltd (“MCPS”), which collects and distributes royalties in respect of works protected by English copyright, finding that there were disputes as to entitlement to that copyright, registered the songs as subject to dual claims; Peermusic (UK) Ltd, a wholly owned U.K. subsidiary of Peer International Corporation (a company incorporated under the laws of New Jersey, USA) claimed to own the copyright but so also did either or both of Termidor Music Publishers Ltd (incorporated in England) and Termidor Musikverlag Gmbh & Co KG (incorporated in Germany). For most purposes it is convenient to lump those companies together as either the Peer companies (“Peer”) or the Termidor ones (“Termidor”).
On 25 th August 2000 Peer began proceedings against Termidor in respect of the thirteen songs and three others; it sought a declaration that it was the copyright owner of the songs. It soon became apparent from Termidor's defence that such title as Termidor claimed had been acquired from Editora Musical de Cuba (“EMC”), an emanation – I deliberately use a loose word — of the Cuban state operating, as its name suggests, in connection with Cuban music. On 5 th March 2001 Termidor applied for EMC to be joined as a Part 20 Defendant and on 15 th March 2001, by consent, permission for that was granted and directions (later slightly varied) were given which included that the Part 20 proceedings should be heard at the same time as the action. The directions included reference to there being expert evidence as to Cuban law.
Once Cuban law had come into play it was thought fit to have some issues raised as preliminary issues of law and on 28 th October 2002 Park J's Order identified three main questions and gave directions for their resolution. The hearing of those issues came before Neuberger J. on 12 th December 2002. His Order included three rulings; firstly, that the documents relied on by Peer as assignments to it, or confirmations of assignments to it, of copyright were “initially valid under the relevant applicable law (without pre-judging what such law is)”; secondly, that a Cuban law called Law 860, which I shall need to return to, was ineffective to deprive Peer of any English copyright otherwise vested in it and, thirdly, that some documents called “Composer Confirmation of Rights”, which Peer said it had obtained in Cuba from heirs of the composers of the songs, were ineffective on their own but, when joined with further documents called Addenda, were effective in point of their language to assign to Peer the reversionary copyrights arising under the proviso to section 5 (2) of the Copyright Act 1911.
That provision, whilst in force, as it was until 1 st June 1957, had the effect that although a composer could in his lifetime assign copyright for up to 25 years after his death, the period beyond that until the expiry of the copyright, a period I shall call “the 1911 Act reversion”, could be disposed of by the composer only by his Will. Disposition by such Will apart, the 1911 Act reversion was to devolve automatically (so the Act provides) “on his legal personal representatives as part of his estate”.
Neuberger J. granted permission to appeal and there was an appeal and cross-appeal which were determined on 4 th August 2003 when Neuberger J's order was affirmed by the Court of Appeal. Permission to appeal to the House of Lords was refused. EMC's case had then, of course, to be considered or reconsidered in the light of the Court of Appeal's ruling and on 7 th March 2004 EMC produced its Part 20 Defendant's Statement of Case which raised wide-ranging attacks on Peer's claims to the English copyrights. It has since been amended. There is no counterclaim by EMC. Termidor has taken no further part in the proceedings; the hard fought contest has been solely between Peer and EMC as the trial has been that of issues as between Peer and EMC as directed by Master Bragge on 5 th July 2004.
Neither side can be congratulated on the way it anticipated and provided for important legal issues and there have been many additional statements of case and amendments. The last amendment to EMC's pleadings, for example, was even after all of what I had taken to be the final speeches had finished on 25 th May 2006. The last written evidence was not received until months later. Oral evidence was heard not only here but, over three days, in Cuba. It has been an unfortunate feature that expert evidence on Cuban law was heard only relatively late on in the action; crucial issues might have been seen for what they were much earlier if it had been brought forward. The hearing before me began on 10 th May 2005 and the last hearing day was well over a year later, on 30 th October 2006.
To turn from a legal or procedural introduction to an historical one, Cuba has enjoyed several indigenous styles of popular music and there have been recordings made of its music going back to the late twenties and early thirties of the last century when recordings available at prices which the general public could afford first appeared on the market. Sales of sheet music were an alternative and cheaper way in which the public could encounter the Cuban sound. The lively and expressive music had, of course, a warm welcome in Cuba but also a following in other Hispanic countries and in the United States. A pioneer of North American interest in the music was the late Mr Ralph Peer, a United States music publisher who visited Cuba, who met composers, who took assignments of copyright and who built up an extensive list of popular Cuban works, including the thirteen songs in issue, to the copyrights in respect of which, by way of what I will call “original agreements”, made directly...
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