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Associated Broadcasting Co v Capac Privy Council 1954

Associated Broadcasting Co v Capac Privy Council 1954

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Published by: hknopf on Mar 18, 2013
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ASSOCIATED BROADCASTING CO. LTD. et al. v. COMPOSERS, AUTHORS & PUBLISHERS ASSOCIATION OFCANADA LTD.21 C.P.R. 79Judicial Committee of the Privy CouncilViscount Simonds, Lords Oaksey, Reid, Tucker and Somervell of HarrowDecember 1, 1954Copyright -- Performing rights -- GramophoneCopyright -- Performing rights -- Gramophone -- Copyright Amendment Act, s. 10B(6a) -- Statutoryinterpretations -- Word -- Ordinary commercial meaning -- Not scientific meaning.In an infringement of copyright proceedings the defendants sought to invoke the provisions of s. 10B6(a) of the Copyright Amendment Act, 1931 (Can.), c. 8 (enacted 1936, c. 28, s. 2; 1938, c. 27, s. 4) as adefence alleging that the instrumentalities used constituted a gramophone. Following the rejection of the submission by the Court of Appeal for Ontario (1952), 16 C.P.R. 33 and the refusal of leave to appealby that Court (1952), 17 C.P.R. 1 leave to appeal was granted by the Privy Council. The appellant(Associated) contended that the component parts or means used by the appellants for the performancein public of musical works are the component parts or means composing a gramophone and producingthe same result.Some of the instrumentalities by which the performance is given are located in the studio of theappellant (Associated) and are under its control. Some are located in the premises of each of the otherappellants and are under their control. Instrumentalities or wires of the Bell Telephone run between thebuilding of the appellant (Associated) and the building where the other appellants carry on theirrespective business.Held, per Viscount Simonds: It cannot be assumed that whatever mechanism, upon an analysis of itsfunctions, seems to do what a gramophone does is therefore properly called a gramo-[21 C.P.R. Sec. II - p. 80]phone. The word gramophone is not used in s. 10B(6a) of the Copyright Amendment Act in a scientificsense but in its popular or commercial sense. In that sense it does not embrace a mechanism includingan undefined length of wiring perhaps going under or over public streets and laid under powers given byParliament to an independent authority.The appeal is dismissed with costs.Statutes Considered: Copyright Amendment Act, 1931 (Can.), c. 8, s. 10B(6a).EDITORIAL NOTE: The decision is of considerable practical significance because of the widespread use of the instrumentalities in issue. Several actions have been allowed to remain pending, awaiting the results
of the present appeal. Since the Privy Council refused to give an extended meaning to the wordgramophone, the beneficial interpretation given to s. 10B(6a) under the decision of Vigneux v. C.P.R.S., 2C.P.R. 251, [1943], 3 D.L.R. 369, S.C.R. 348 [revd 4 C.P.R. 65, [1945], 2 D.L.R. 1, A.C. 108] is not applicableto the instrumentalities in question.For recent decisions of applying the ordinary popular meaning to the interpretation of words of astatute reference may be made to The Queen v. Universal Fur Dressers & Dyers Ltd., [1954] Ex. C.R. 247and cases there cited.APPEAL from the judgment of the Ontario Court of Appeal, 16 C.P.R. 33, reversing the judgment of Schroeder J., 14 C.P.R. 81, dismissing an action for infringement of copyright in certain musical works.Affirmed.H. G. Fox, Q.C. and W. Stuart Bevan, for appellants.H. E. Manning, Q.C. and F. E. Skone-James, for respondent.The judgment of their Lordships was delivered byVISCOUNT SIMONDSVISCOUNT SIMONDS:--The short question in this appeal, which is brought by special leave from an Orderof the Court of Appeal for Ontario, is whether the appellants have infringed the copyright in certainmusical works which, so far as concerns the sole right to perform those works in public throughoutCanada, is vested in the respondents, The Composers, Authors and Publishers Association of Canada Ltd.The answer to this question turns on the true meaning and effect of s. 10B(6a) of the CopyrightAmendment Act, 1938 (Can.), c. 27, s. 4, which is in these terms:In respect of public performances by means of any radio receiving set or gramophone inany place other than a theatre which is ordinarily and regularly used for entertainments to which anadmission charge is made, no fees, charges or royalties shall be collectable from the owner or user[21 C.P.R. Sec. II - p. 81]of the radio receiving set or gramophone, but the Copyright Appeal Board shall, so far aspossible, provide for the collection in advance from radio broadcasting stations or gramophonemanufacturers, as the case may be, of fees, charges and royalties appropriate to the new conditionsproduced by the provisions of this subsection and shall fix the amount of the same. In so doing theBoard shall take into account all expenses of collection and other outlays, if any, saved or saveable by,for or on behalf of the owner of the copyright or performing right concerned or his agents, inconsequence of the provisions of this subsection.It is not disputed either that copyright subsists in the works in question or that it is vested in therespondents or that they have been performed in public. The performances were in fact given in certainpremises in Toronto occupied by the appellants Reibsten, Dennis and Westminster Hotel Ltd.
respectively. None of these premises was a "theatre which is ordinarily and regularly used forentertainments to which an admission charge is made". No fees were therefore collectable from theappellants or any of them if within the meaning of the section the performances were given by means of any radio receiving set or gramophone, or, more specifically, by means of any gramophone as it is notalleged that they were given by means of any radio receiving set.It is necessary then to consider in some detail what are the means by which the performance is givenand their Lordships find an accurate and sufficiently comprehensive account of this in the judgment of the Court of Appeal for Ontario [16 C.P.R. 33] which they substantially adopt.The equipment (to use a neutral word) which in this case is alleged to constitute a gramophone can bestbe described by reference to a drawing which was filed as an exhibit in the case. A verbal description of its component parts as shown and numbered on that drawing is as follows:Part No. 1 is an electric motor.No. 2 is a turn-table.No. 2a is a spindle of the motor operating the turn-table.No. 3 is a stylus or needle.No. 4 is a playing head holding the needle and having a magnetic pick-up; that is, a coil in amagnetic field.No. 5 is a suspension arm.[21 C.P.R. Sec. II - p. 82]No. 6 are electrical connecting wires from the coll in the playing head leading to an amplifierwhich is No. 7.No. 7a are electrical connecting wires.No. 8 is a loudspeaker connected with the amplifier (No. 9) by electrical wires.No. 9 is an amplifier.The instrumentalities numbered 1 to 7 inclusive are located in the studio of the appellants theAssociated Broadcasting Co, Ltd. hereinafter called A.B.C. and are under the sole control of A.B.C., itsservants or agents.Instrumentalities numbered 9 and 8 are located in the premises of each of the other appellants and areunder their control. They are owned by A.B.C. and were installed in the premises of the other appellantsby A.B.C. pursuant to its contract with those other appellants.

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