Phonographic Performance Ltd v Department of Trade and Industry & Anor, Court of Appeal - Chancery Division, July 23, 2004, [2004] 3 CMLR 31,[2004] EWHC 1795 (Ch),[2004] 1 WLR 2893,[2004] Eu LR 1003,[2005] 1 All ER 369

Reporting Judge: [2004] 3 CMLR 31,[2004] EWHC 1795 (Ch),[2004] 1 WLR 2893,[2004] Eu LR 1003,[2005] 1 All ER 369

President: Phonographic Performance Ltd v Department of Trade and Industry & Anor

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Extract

Case Nos: HC03C00868

HC03C00869

Neutral Citation Number: [2004] EWHC 1795 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 23rd July 2004

Before :

THE VICE-CHANCELLOR

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Between :

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Mr. David Pannick QC and Mr. Pushpinder Saini (instructed by Messrs GSC Solicitors) for the Claimant

Mr. Daniel Alexander QC and Miss Jemima Stratford (instructed by the Treasury Solicitor) for the Defendants

Hearing dates : 7th and 8th July 2004

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Judgment

The Vice-Chancellor :

Introduction

1. Ss.67 and 72 Copyright Designs and Patents Act 1988 (``the 1988 Act'') provide that certain actions do not constitute an infringement of the copyrights therein mentioned if carried out in accordance with the provisions of those respective sections. S.67 relates to copyright in sound recordings and playing them as part of the activities of a club. S.72 deals with the copyright in a broadcast or cable programme or any sound recording or film included in it and showing or playing it to an audience who have not paid for admission to the place where it is to be seen or heard.

2. By Council Directive 92/100/EEC (``the Rental Directive''), promulgated by the Council of the European Communities on 19th November 1992, it was provided in Article 8.2 that

``Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such a phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers.''

Article 10 entitled Member States to provide for limitations to that right. In particular Article 10.2 provided that

``....any Member State may provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms, broadcasting organisations and of producers of the first fixations of films as it provides for in connection with the protection of co...

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