Phonographic Performance Ltd v South Tyneside Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 2000 |
| Judgment citation (vLex) | [2000] EWHC J1123-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 November 2000 |
[2000] EWHC J1123-1
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Neuberger
Thursday, 23rd November, 2000
MR. JUSTICE NEUBERGER: This is a preliminary issue which is of some importance to Local Authorities and to owners of copyright in musical recordings.
The issue is whether a Local Authority, in this case a Metropolitan District Council, can take advantage of Section 67 of the Copyright Design and Patents Act 1988. Section 67 is one of a number of statutory permissions, contained in Chapter III of the 1988 Act, for the doing of acts which would otherwise be an infringement of copyright.
Chapter III is introduced by Section 28 which provides:
"(1) The provisions of this chapter specify acts which may be done in relation to copyright works notwithstanding the subsistence of copyright; they relate only to the question of infringement of copyright and do not effect any other right or obligation restricting the doing of any of the specified acts…..
(4) The provisions of this chapter are to be construed independently of each other, so that the fact that an act does not fall within one provision does not mean that it is not covered by another provision. The exceptions include research and private study (Section 29); criticism, review and news reporting (Section 30); various educational uses (Sections 32 to 36A); use in connection with library and archives (Sections 37 to 44); and public administration (Sections 45 to 50)."
Section 67 is in these terms: "(1) It is not an infringement of the copyright in a sound-recording to play it as part of the activities of or for the benefit of a club, society or other organisation if the following conditions are met.
(2) The conditions are: (a) that the organisation is not established or conducted for profit, and its main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare; and (b) where the proceeds of any charge for admission to the place where the recording is to be heard are applied solely for the purposes of the organisation."
The Defendant is the South Tyneside Metropolitan Borough Council. It is a Local Authority which came into existence pursuant to the provisions of the Local Government Act 1972; its functions are statutory and derive from a number of Acts of Parliament.
Mr. David Marsden, Head of the Defendant's Leisure Department, explains that the Defendant "maintains numerous premises throughout the local area which are used for many different purposes, ranging from adult education to sports centres and swimming pools, libraries, parks and museums." He goes on to say that the activities of the Defendant are "very varied and all of the activities and services are activities and services which [it] is authorised or empowered to carry out or provide by statute."
The preliminary issue is concerned with two specific cases. They both involve aerobics and keep fit lessons for adults, which are open to all members of the public subject to the capacity of the room in which they are conducted. People who attend have to pay in order to obtain entry; after a payment of outgoings, the balance is retained by the Defendant.
At these classes sound recordings are played. One of the cases involves such a class at the Monckton Stadium, a large building comprising a sports' hall, an indoor sprint track, a meeting room, a fitness room, a solarium, changing facilities, offices, reception and a kitchen. Outside there are two football pitches, a training track, some offices and a pavilion. The Monckton Stadium is used for a great variety of sporting and leisure activities and is used by, among others, church groups, schools, colleges and athletic federations.
The other case involves a similar class at the Bolingbroke Sports Hall which consists of a sports' hall, a squash court, a judo room, a meeting room, a main hall, a play room, a solarium, two fitness rooms, model railway club rooms, changing rooms and a rifle range. Bolingbroke Sports Hall is used for football, keep fit, pistol shooting, judo, model railway club and various other uses.
The sound recordings, or at least the great majority of them, broadcast at these classes are said to be the copyright of the Claimant, Phonographic Performance Limited (PPL). PPL is the collective licensing body of record companies and owns or controls the performing and associated rights of the vast majority of commercially available sound recordings. PPL's ownership of the copyright to the recordings broadcast in the test cases is not formally admitted.
The issue before me today is whether the sound recordings broadcast at these events (and, indeed, it would seem to me to follow, at any events organised by the Defendant, other than one where the Defendant effectively subcontracts the event to another organisation and merely takes a fee from the organisation, which then runs and profits from the event) where the proceeds (after expenses) are retained by the Defendant, the Defendant can take advantage of Section 67 of the 1988 Act.
In my firm view, the answer to that question is in the negative. I accept that the word "organisation" is, shorn of any limiting context, capable of extending to a Local Authority; however, it appears to me that in the context of Section 67 it does not do so.
Section 67(1) and (2) have to be read together. There are, as I see it, two limiting factors inherent in those two subsections on the type of organisation contemplated by Section 67(1). The more uncontroversial and the more obvious is the express limitation in the second half of Section 67 (2)(a). I do not think, as a matter of normal language, that a reader of Section 67(1) would think that a Local Authority was an organisation whose "main objects are charitable or…..otherwise concerned with the advancement of religion, education or social welfare."
The advancement of education is irrelevant. I do not consider that the normal user of language would think of any of a Local Authority's functions, and certainly the Local Authority's functions viewed as a whole, as "charitable". No doubt one (but only one) of the main objects of a Local Authority could be said to be the advancement of education, but social welfare in the context of Section 67(2)(a) is, in my judgment, an inappropriate expression to apply to the functions of a Local Authority.
Secondly, there is a natural, albeit not spelt out, limitation from the fact that the word "organisation" in Section 67(1) is preceded by the words "clubs, societies or other". There seems little point in referring to "clubs" and "societies" if "organisation" is meant to have such a wide meaning as to include Local Authorities.
This can be said to involve an application of the so-called ejusdem generis rule. Lord Diplock explained this rule in Quazi v Quazi (1980) Appeal Cases 744 at 807–8 in these terms: "As the Latin words with the label attached to it suggests, the rule applies to cut down the generality of the expression "other" only where it is preceded by a list of two or more expressions having more specific meaning, and sharing some common characteristics from which it is possible to recognise them as being species belonging to a single genus and to identify what the essential characteristics of that genus are. The presumption then is that the draftsman's mind was directed only to that genus and that he did not, by his addition of the word "other" to the list, intend to stray beyond its boundaries but merely to bring within the ambit of the enacting words those species which complete the genus but have been omitted from the preceding list either inadvertently or in the interests of brevity."
In the same case, Lord Scarman said at 824: "If the legislative purpose of a statute is such that a statutory series should be read ejusdem generis, so be it, the rule is helpful; but, if it is not, the rule is more likely to defeat than to fulfil the purpose of the statute. The rule, like many other rules of statutory interpretation, is a useful servant but a bad master."
To a significant extent, my remarks so far can be said to be based on impression. It is often difficult for anyone, even a lawyer, to explain precisely why a specific set of words convey one meaning rather than another to him. Nonetheless, bearing in mind the points I have so far been discussing, the strong and clear impression I have is that a Local Authority is not within the scope of Section 67.
To explore this matter a little further, the two types of entity specified in Section 67(1), "clubs" and "societies", consist of individuals who could be said to be to an extent bound together in a common activity or enterprise, the nature of which is qualified by Section 867(2)(a).
A Local Authority is quite different: it is an entity with specific statutory duties and powers enabling it, indeed requiring it, to raise substantial sums of money and to provide administrative services and functions for a specified region.
Further, if the words "or other organizations" include Local Authorities, it appears to me that it would have a very wide ambit indeed; most, possibly virtually all, arms of National Government, Local Government, Quangos, Regional Health Trusts and so on, would appear all to be covered by the word "organization", if the Defendant's argument is correct. They could all be said to be "established for the purposes of social welfare", as that expression is explained on behalf of the Defendant.
I think it is most unlikely that the legislature can have intended to bring such a large number of different entities within the ambit of Section 67 simply by use of the words "or other organizations" after "clubs...
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