CBS Songs Ltd v Amstrad Consumer Electronics plc

Under the Copyright Act 1956, to authorise an infringement means to grant or purport to grant, expressly or impliedly, the right to perform the restricted act. Selling or advertising equipment capable of both lawful and unlawful copying does not authorise infringement where the operator alone decides how to use it.

Joint liability requires participation pursuant to a common design. A person who procures a particular infringement through inducement, incitement or persuasion may be jointly liable, but merely facilitating infringement is insufficient. Copyright rights and remedies are statutory; courts cannot create additional duties requiring manufacturers to prevent, discourage or warn against infringement.

The appellants represented owners of copyright in musical and literary works and sound recordings. They alleged that Amstrad Consumer Electronics plc and Dixons Ltd unlawfully manufactured, advertised and sold twin-deck tape-recording equipment which customers were likely to use for infringing home copying. They sought an injunction restricting the sale or advertising of the equipment, together with damages or an account of profits.

Whitford J refused to strike out the claim. The Court of Appeal, by a majority, reversed that decision and struck it out: [1988] Ch. 61; [1987] R.P.C. 429. The central issues were whether the respondents authorised infringement under the Copyright Act 1956, were joint infringers or procurers, incited a criminal offence, or owed a duty of care to copyright owners.

1. Disposition. Lord Templeman delivered the only reasoned speech. Lord Keith of Kinkel, Lord Griffiths, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle expressly agreed with it. The House unanimously dismissed the appeal and affirmed the Court of Appeal's order striking out the claim.

2. Per Lord Templeman: authorisation. In the context of section 1 of the Copyright Act 1956, authorisation means an express or implied grant or purported grant of the right to perform the restricted act. Amstrad supplied the power or facility to copy, but did not grant the right to copy unlawfully. The machines had substantial lawful uses, Amstrad had no control over them after sale, and each operator independently chose whether and what to copy. The advertising, although deplorable and cynical, did not imply that Amstrad possessed authority to permit copying. The reasoning of Atkin LJ in Falcon v Famous Players Film Co [1926] 2 K.B. 474 was approved, and C.B.S. Inc. v Ames Records & Tapes Ltd [1982] Ch. 91 applied.

3. Per Lord Templeman: joint infringement and procurement. Joint infringers must act in concert pursuant to a common design. The sale of a dual-use machine, without control over or participation in its later use, did not establish such a design. A person who intends and procures an infringement through inducement, incitement or persuasion may be jointly liable with the direct infringer. Generally, however, the conduct must be directed to an identifiable infringer and procure a particular infringement. Facilitating possible infringements through general sales and advertising was insufficient.

4. Per Lord Templeman: criminal incitement and negligence. A commercially produced record did not become a “plate” under sections 18(3) and 21(3) merely because its possessor intended to copy it. It was the product of the master recording, which was the plate. The asserted criminal offence therefore did not arise. Amstrad owed the statutory duties not to infringe copyright or authorise infringement, but owed no duty in negligence to prevent, discourage or warn against infringements committed by purchasers.

5. Per Lord Templeman: statutory limits. Copyright rights are defined by Parliament. Section 17 did not enlarge the acts constituting infringement, and the court could not invent additional rights or impose fresh burdens because existing protection against home copying was ineffective. Any restriction on recording equipment, compulsory warning or copying levy required legislation rather than judicial regulation.

1. House of Lords: The appeal was dismissed unanimously. The Court of Appeal's order was affirmed, and the appellants were ordered to pay the respondents' costs. [1988] AC 1013.

2. Court of Appeal: Fox and Nicholls LJJ, Sir Denys Buckley dissenting, allowed the appeal from Whitford J and struck out the copyright owners' action for failure to disclose a cause of action. [1988] Ch. 61; [1987] R.P.C. 429.

3. High Court: Whitford J had dismissed the respondents' summons to strike out the action.

4. Earlier related proceedings: Whitford J dismissed Amstrad's claim for a declaration that its conduct was lawful: [1986] F.S.R. 159. The Court of Appeal disagreed with his conclusions but declined to grant the declaration because the advertising might arguably incite an offence under section 21(3) of the Copyright Act 1956: [1986] F.S.R. 159.