Performing Right Society v Rangers F.C. Supporters' Club, Greenock
| Jurisdiction | Scotland |
| Judgment Date | 11 December 1973 |
| Date | 11 December 1973 |
| Docket Number | No. 7. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Stott.
CopyrightInfringementClubPerformance of copyright work in members' clubGuests of members presentWhether performance "in public"Copyright Act, 1956 (4 and 5 Eliz. II, cap. 74), secs. 1 (1) and (2), 2 (5) (c), 12 (5) (b) and (7) (b) and 14 (4) and (8).
The Copyright Act, 1956, by sec. 1 (1) defines "copyright" in relation to a work as "the exclusive right to do, or to authorise other persons to do, certain acts in relation to that work in the United Kingdom," the acts being those "designated as the acts restricted by the copyright in a work of that description." Sec. 1 (2) provides that 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, "does, or authorises another person to do, any of the said acts " Sec. 2 enacts:"(5) The acts restricted by the copyright in a musical work are (c) performing the work in public."
A members' club, which had 343 members and whose stated object was to promote social intercourse among club members, owned premises in Greenock with lounges and a licensed bar. On three evenings in July 1971 a band provided music in the main lounge. On these occasions there were about 150 persons in the premises, of whom about 25 were members' guests and the remainder members. About 100 were in the main lounge, where the music was being played. Among the works performed were three of which the sole right of performance in public was held by the Performing Right Society. The club had not obtained the licence of the society for the performance of these works. In an action for interdict and damages at the instance of the society the club contended that the performance was in private and therefore did not require the society's licence.
Held that the words "In public" did not refer to the public at large, but could have a more restricted meaning; that the matter must be tested by looking at the relationship of the audience not to the performers but to the owner of the copyright, the character of the audience being a prime consideration and the question being whether the owner could fairly consider the audience as part of his public; and (rev. judgment of Lord Stott) that in the light of all the circumstances the performances were in public.
Opinions reserved on a submission that the effect of sec. 12 (5) (b) and (7) (b) and sec. 14 (4) and (8) was that a club would normally be a place where a performance would be regarded as being in public.
ProcessReviewReclaiming motion after proofIssue to be decided as question of factWhether Lord Ordinary's judgment open to review only if no evidence to support it.
In an action which raised the question whether certain performances were given "in public" within the meaning of the Copyright Act, 1956, the Lord Ordinary in a reasoned judgment held that, in the light of the facts established at a proof, the performances were not so given. In a reclaiming motion the respondents contended that, if the issue was to be decided as a question of fact, his judgment should be tested in the same manner as a jury's verdict and could not be reversed unless there was no evidence to support it.
Held that, as the Lord Ordinary had stated the reasons for his decision, including his view of the law and its application to the facts found, the judgment was open to the same scrutiny as that of any judge after a proof.
The Performing Right Society Limited brought an action against Rangers F.C. Supporters' Club, Greenock, and the club's office-bearers, as representing it, in which they concluded (1) for interdict against the defenders or any other persons or person acting on behalf of the defenders from infringing the right of performance in public vested in the pursuers of the musical works entitled "Yellow River," "Ten Guitars," and "Rangers' Song," the sole right of performance of which in public was vested in the society, and that by authorising or permitting the performance of the said works or any of them in public without having previously obtained their consent; and (2) for payment to them by the defenders jointly and severally or severally of the sum of 150 sterling, with interest from the date of citation.
The following narrative of the facts is taken from the opinion of the Lord Ordinary:"The facts are not in dispute. Briefly stated, they are that the defenders' club own and occupy premises in Greenock, which are open to members and their guests each evening for social purposes. On Fridays, Saturdays and Sundays music is provided through the agency of a band or instrumental group. Those who wish to dance are free to do so, a space being left in the centre of the floor in the main lounge, where the music is played. Inspectors employed by the pursuers visited the premises on three Fridays in July 1971, and found that music was being provided by a group of three players calling themselves The Marksmen, and that it included the three named pieces of which the copyright and licensing rights are held by the pursuers. The number of people present in the club was about 150, of whom 25 or 26 were members' guests and the rest were members. About 100 were in the main lounge, where the music was played; the remainder were in other parts of the premises, mostly in the television lounge. There was a licensed bar, and facilities were provided for playing darts and dominoes. The total membership of the club at the time was 343. The club was constituted in 1968, when the club premises were opened, and its objects are stated in its rules as being "to promote social intercourse among its members." It took over the functions of the Greenock branch of Rangers F.C. Supporters' Association and, in particular, the function of arranging buses to convey supporters to football matches in which Rangers were taking part. The original members of the club were those who had been members of the Supporters' Association and the election of members was so arranged as for the most part to confine the membership to Rangers supporters who make use of the travel facilities provided by the club. The club is a members' club and is non-profit-making. Apart from a small annual subscription its income is derived from lotteries and from the sale of exciseable liquor in the club premises. Profits from these activities, after meeting day-to-day expenses and a subsidy on the bus transport provided, go into the club's general fund, which has so far been utilised mainly in paying off a loan obtained when the premises were acquired. The band which played in July 1971 was paid out of the club's general fund."
The pursuers pleaded, inter alia:"(1)The defenders having infringed the pursuers' rights of performance in public of said musical compositions specified in the first conclusion of the summons as condescended on, interdict should be granted as concluded for. (2)The pursuers having sustained loss, injury and damage as a result of the said infringements, and the sum sued for in name of damages being reasonable, decree therefor should be pronounced as concluded for."
On 2nd May 1973, after a proof, the Lord Ordinary (Stott) assoilzied the defenders from the conclusions of the summons.
At advising on 11th December 1973,
LORD JUSTICE-CLERK (Wheatley).The reclaimers, who are the pursuers in the action, seek interdict against the respondents, the defenders, from infringing the right of performance in public of three named musical works, the sole rights of performance in public of which are vested in them. They
also seek damages from the defenders in respect of infringement of their copyright in these three works, and it is a matter of agreement that, if the defenders are held to have infringed the copyrights so as to justify the granting of the interdict sought, the sum of 150 properly represents the damage sustainedThe Lord Ordinary has set out the salient facts in his opinion. He did not mention, however, that there was evidence that the rules regarding the admission of guests to the defenders' club were proved to have been broken or not observed on occasions. Subject to this omission, the facts as he narrated them were accepted by both parties. In these circumstances I find it unnecessary to set out the facts myself, and shall proceed forthwith to the one issue in the case, namely, whether on the three occasions condescended upon the performance of the three musical works in the defenders' club constituted a performance in public within the meaning of the Copyright Act, 1956.1 The Lord Ordinary held that it did not, and accordingly assoilzied the defenders. It is against that decision that the present reclaiming motion has been taken.
Counsel for the parties were agreed that the term "in public" as used in the Copyright Act, 1956,1 and its predecessor, the Copyright Act, 1911,2 had never been the subject of judicial interpretation by the Scottish courts. Several English cases, decided after the passing of the 1911 Act,2 were cited to the Lord Ordinary. These were Harms (Incorporated) Ltd. v. Martans ClubELR,3Performing Right Society v. Hawthorns HotelELR,4Jennings v. StephensELR,5 and Ernest Turner Electrical Instruments Ltd. v. Performing Right SocietyELR.6 His attention was also drawn to Duck v. BatesELR,7to Australasian Performing Right Association Ltd. v. Canterbury-Bankstown League Clubs Ltd.,8 a decision of a Full Court of the Supreme Court of New South Wales, and to two decisions in the Maltese courts. The Lord Ordinary did not question the validity of the decisions in these cases, but sought to differentiate them from the present case on the ground that the facts were different. He stressed that his decision in favour of the defenders was a decision on the facts of the case. That decision is summarised in a single sentence in his opinion. Having stated what, on the facts, the defenders' club was and was not, he said (at p...
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