Copyright, Designs and Patents Act 1988, section 105

Presumptions relevant to sound recordings and films

Part I Copyright

(1)In proceedings brought by virtue of this Chapter with respect to a sound recording, where copies of the recording as issued to the public bear a label or other mark stating—

(a)that a named person was the owner of copyright in the recording at the date of issue of the copies, or

(b)that the recording was first published in a specified year or in a specified country,

the label or mark shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(2)In proceedings brought by virtue of this Chapter with respect to a film, where copies of the film as issued to the public bear a statement—

(a)that a named person was the [F278director or producerF278] of the film,

F279 (aa)that a named person was the principal director, the author of the screenplay, the author of the dialogue or the composer of music specifically created for and used in the film,

(b)that a named person was the owner of copyright in the film at the date of issue of the copies, or

(c)that the film was first published in a specified year or in a specified country,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(3)In proceedings brought by virtue of this Chapter with respect to a computer program, where copies of the program are issued to the public in electronic form bearing a statement—

(a)that a named person was the owner of copyright in the program at the date of issue of the copies, or

(b)that the program was first published in a specified country or that copies of it were first issued to the public in electronic form in a specified year,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(4)The above presumptions apply equally in proceedings relating to an infringement alleged to have occurred before the date on which the copies were issued to the public.

(5)In proceedings brought by virtue of this Chapter with respect to a film, where the film as shown in public [F280or communicated to the publicF280] bears a statement—

(a)that a named person was the [F278director or producerF278] of the film, or

F281 (aa)that a named person was the principal director of the film, the author of the screenplay, the author of the dialogue or the composer of music specifically created for and used in the film, or,

(b)that a named person was the owner of copyright in the film immediately after it was made,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

This presumption applies equally in proceedings relating to an infringement alleged to have occurred before the date on which the film was shown in public, broadcast or included in a cable programme service.

F282 (6)For the purposes of this section, a statement that a person was the director of a film shall be taken, unless a contrary indication appears, as meaning that he was the principal director of the film.

Definitions used in section 105 9

sound recording

(1) In this Part “sound recording” means—

(a)a recording of sounds, from which the sounds may be reproduced, or

(b)a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced,

Defined in s.5A(1) · see it in the full Act

“sound recording” means—

Defined in s.5(1) · see it in the full Act
copy

(1)The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

Defined in s.17(1) · see it in the full Act
country

“country” includes any territory;

Defined in s.178 · see it in the full Act
film

(1) In this Part “film” means a recording on any medium from which a moving image may by any means be produced.

Defined in s.5B(1) · see it in the full Act

“film” means a recording on any medium from which a moving image may by any means be produced.

Defined in s.5(1) · see it in the full Act
producer

“producer”, in relation to a sound recording or a film, means the person by whom the arrangements necessary for the making of the sound recording or film are undertaken;

Defined in s.178 · see it in the full Act
author

(1) In this Part “author”, in relation to a work, means the person who creates it.

Defined in s.9(1) · see it in the full Act

“author”, in relation to a design, has the meaning given by section 2(3) and (4);

Defined in Sch.4 para.38 · see it in the full Act

(3) In this Act the “author” of a design means the person who creates it.

Defined in Sch.4 para.38 · see it in the full Act
in electronic form

“electronic” means actuated by electric, magnetic, electro-mechanical energy, and “in electronic form” means in a form usable only by electronic means;

Defined in s.178 · see it in the full Act
made

(2)Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

Defined in s.3(2) · see it in the full Act
broadcast

(1) In this Part a “broadcast” means an electronic transmission of visual images, sounds or other information which—

(a)is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or

(b)is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,

Defined in s.6(1) · see it in the full Act

Cases considering section 105 3

Henry Hadaway Organisation Ltd v Pickwick Group Ltd & Ors

[2015] EWHC 3407 (IPEC) · 25 November 2015Interprets

The court considered whether copyright statements raised statutory presumptions of ownership and held that any presumptions raised were rebutted on the balance of probabilities. The provision imposed no special burden of proof (see paras [67], [99]-[102]). The court applied section 105(1) to the copyright statements on copies issued to the public. Any valid presumption that Pickwick 1/Carlton owned copyright was rebutted by the evidence of GLPL’s ownership and licensing arrangements (see paras [66]-[67], [100]-[102]).

Independiente Ltd. & Ors v Music Trading On-Line (Hk) Ltd. & Ors

[2003] EWHC 470 (Ch) · 13 March 2003

Applies the statutory presumptions concerning subsistence and ownership of copyright arising from requisite labels or marks. Those presumptions supported the conclusion that represented members could benefit from injunctive relief without making the injunction impermissibly uncertain (see paras [17]-[19], [27], [29]).

Penhallurick v MD5 Ltd

[2021] EWHC 293 (IPEC) · 15 February 2021

The court considered the analogous presumption under section 105(1) and confirmed that it could be rebutted on the balance of probabilities without a higher burden of proof (see para [100]).

What each judgment says about section 105 is in the case-law panel in the full Act.

Amendments and notes

5 notes from legislation.gov.uk

Amendments

  1. F278Words in s. 105(2)(a)(5)(a) substituted (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I. 1996/2967, regs. 18(4)(a), 36 (with Pt. III)
  2. F279S. 105(2)(aa) inserted (1.1.1996) by S.I. 1995/3297, Pt. II reg. 5(4) (with Pt. III)
  3. F280Words in s. 105(5) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(1)(c) (with regs. 31-40)
  4. F281S. 105(5)(aa) inserted (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I. 1996/2967, reg. 18(4)(b) (with Pt. III)
  5. F282S. 105(6) added (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I. 1996/2967, reg. 18(4)(c) (with Pt. III)