Performing Right Society Ltd v Bray Urban District Council
| Jurisdiction | UK Non-devolved |
| Judgment Date | 10 April 1930 |
| Date | 10 April 1930 |
| Court | Privy Council |
Irish Free State - Constitution - Appeal to Privy Council - Copyright - Musical Work - Infringement - “Private Profit” - Retrospective Act depriving Appellants of Remedy -
Under art. 66 of the constitution enacted by the Irish Free State Constitution Act, 1922, construed (as directed by the preamble) with reference to art. 2 of the scheduled treaty, the Judicial Committee has jurisdiction to hear an appeal from the Supreme Court of the Irish Free State to His Majesty in Council by an appellant who has been granted special leave so to appeal.
As by s. 25, sub-s. 1, of the Copyright Act, 1911, that Act extended throughout His Majesty's dominions, except to a self-governing dominion which did not adopt it, and s. 35, sub-s. 1, restricted the meaning of “self-governing dominion” to the dominions which are therein specifically named, Ireland not being included, the Act was in force in the Irish Free State when the constitution came into operation, and consequently by art. 73 thereof continued of full force and effect until it was repealed by the Industrial and Commercial Property (Protection) Act, 1927, of the Irish Free State. Sect. 174, sub-s. 1, of that Act which provides that rights acquired under the Act of 1911 before December 6, 1921, shall not be affected by the repeal, preserves rights the inception of which was before that date although they have been assigned after it.
A local authority commits an infringement under s. 2, sub-s. 1, of the Act of 1911, if a band which it has engaged to perform in public plays, without consent, copyrighted musical works which are included in a programme approved by the local authority, and the performance is for the “private profit” of the local authority, within s. 2, sub-s. 3, although any profit resulting will be applied to the relief of ratepayers.
The Judicial Committee, although of opinion that the judgment of the Supreme Court was wrong in holding that the appellants were not entitled to any remedy in respect of an infringement in 1926 of their rights under the Copyright Act, 1911, advised that the judgment should be discharged only so far as it dealt with costs, as the Copyright (Preservation) Act, 1929, passed by the Irish Free State legislature after the grant of special leave to appeal, while enacting that rights under the Act of 1911 were to be deemed always to have subsisted in the Irish Free State, provided by s. 4 that no remedy or relief should be granted in respect of any infringement which had there taken place before the passing of the Act.
APPEAL (No. 27 of 1929) by special leave from a judgment of the Supreme Court of the Irish Free State (July 27, 1928) reversing a judgment of the High Court of Justice (November 15, 1927).
The appellants brought an action on September 16, 1926, against the respondents in the High Court of Justice of the Irish Free State, alleging that by a band performance given on the esplanade of Bray on August 11, 1926, the respondents had infringed their rights under the Copyright Act, 1911, in two musical works. They prayed for an injunction both under s. 2, sub-s. 1, and s. 2, sub-s. 3, of that Act.
Both the musical works in question had been published before December 6, 1921, but the sole performing right in each had been assigned to the appellants after that date.
The defence put all matters in issue, and pleaded further that the Copyright Act, 1911, was not in force in the Irish Free State at the material date.
The material facts appear from the judgment of the Judicial Committee.
The Copyright Act, 1911, provides by s. 25, sub-s. 1, and s. 35, sub-s. 1, as follows:—
Sect. 25, sub-s. 1: “This Act, except such provisions thereof as are expressly restricted to the United Kingdom, shall extend throughout His Majesty's dominions: Provided that it shall not extend to a self-governing dominion, unless declared by the Legislature of that dominion to be in force therein ……”
Sect. 35, sub-s. 1: “In this Act, unless the context otherwise requires, — …. ‘Self-governing dominion’ means the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, and Newfoundland.”
The terms of s. 174, sub-s. 1, of the Industrial and Commercial Property (Protection) Act, 1927 (I. F. S.), are stated in the judgment.
The trial judge (Johnston J.) held that the plaintiffs' rights under the Copyright Act, 1911, subsisted in the Irish Free State at the material date, and that they had been infringed by the defendants; he granted an injunction as prayed.
The Supreme Court (Kennedy C.J., Fitzgibbon and Murnaghan JJ.) reversed the judgment, and dismissed the action. Fitzgibbon J., in delivering the judgment of the Court, held that at latest by March 31, 1922, when the agreement for a treaty between Great Britain and Ireland was given the force of law, the Irish Free State acquired the status of a self-governing dominion, and thereupon, under s. 25, sub-s. 1, of the Copyright Act, 1911, that Act ceased to extend to the Irish Free State; he held further that the plaintiffs' rights were not protected by s. 174, sub-s. 1, of the Act of 1927, as they had been acquired after December 6, 1921.
The proceedings in both Courts are reported at [
The provisions, material to the present appeal, of the constitution enacted by the Irish Free State Constitution Act, 1922, and of the scheduled treaty appear from the judgment of the Board.
1930. Jan. 27, 28, 30, 31; Feb. 24, 25, 27. Stuart Bevan K.C. and Hon. S. O. Henn Collins for the appellants. It was conceded in the Supreme Court that if the rights claimed by the appellants subsisted in the Irish Free State there had been an infringement by the respondents. The Supreme Court was wrong in holding that the Copyright Act, 1911, did not apply. The definition in s. 35 restricts the meaning of “self-governing dominion” in s. 25, sub-s. 1, to the dominions which it specifically named, Ireland not being included. The Act was therefore in force there when the Irish Free State Constitution Act, 1922, came into operation. Accordingly by art. 73 of the constitution the Act continued of full force and effect until it was repealed by the Irish Free State legislature in 1927. The repeal shows that that was the view of that legislature; see also Act No. 2 of 1922, I. F. S. The effect of the judgment is that there was no law of copyright in force in the Irish Free State until 1927. If the Act of 1911 did not apply, the
Battersby K.C. and Dickie K.C. (with them C. S. Campbell) for the respondents. The contention that the respondents committed no infringement, even if the Act of 1911 subsisted, was not abandoned in the Supreme Court. There was no evidence establishing within the authorities that the respondents either authorized or permitted the band, who were not their servants, to play the two works in question: Performing Right Society v. Ciryl Theatrical SyndicateF4; Performing Right Society v. Mitchell & Booker (Palais de Danse), Ld.F5; Falcon v. Famous Players Film Co.F2; Donovan v. Laing, Wharton and Down Construction...
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