Corporation of the City of Adelaide v Australasian Performing Right Association Ltd [1928] HCA 10;

Corporation of the City of Adelaide v Australasian Performing Right Association Ltd [1928] HCA 10; - HCA 1928 case summary — Zoe

[12]

I agree with the learned Judges of the Supreme Court in thinking that indifference or omission is "permission" within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby fails to prevent it. This statement of the legal position was not challenged in argument before this Court. The Supreme Court thought, and I agree, that the question to be answered in this case was whether after the receipt of the letter of 7th October the appellant abstained from action which under the circumstances then existing it would have been reasonable to take, or, in other words, whether it exhibited a degree of indifference from which permission ought to be inferred. It is unnecessary in the present case to consider what the result would have been if the case made for the respondent had rested on the letter of 7th October alone, for on 21st October the appellant was referred to an advertisement which announced that the song in question was to be sung at the concert to be given on the evening of the following day. On receipt of the information the appellant had power under clause 16 of the conditions governing the letting of the hall to cancel the letting, returning portion of the rent paid. The appellant had been informed both by the respondent and by its solicitors that the performance of this work would be an infringement of the copyright of the respondent. Its attention was drawn to the fact that at the previous concerts of the series some of the works comprised in the list attached to the letter of 7th October had been performed, and proceedings for infringement were threatened. It had no reason to doubt the statements of the respondent and its solicitors that performance of the works mentioned in the list would be an infringement of copyright, and it therefore had reasonable ground for suspecting that the performance would be an infringement of copyright. In these circumstances it elected to do nothing. Having the power to prevent the threatened infringement, it abstained from doing so. Although an affidavit was made by the Town Clerk and used in opposition to the motion for injunction it contains no contradiction or qualification or explanation of the relevant facts deposed to in the affidavits filed on behalf of the respondent, nor does the deponent venture to suggest that there was not reasonable ground for suspecting that the copyright of the respondent in this song was likely to be infringed. It was left for counsel to suggest in argument that the Corporation could not know that the respondent was the owner of a valid copyright and for that reason was not bound to take action. In my opinion the Full Court was clearly right in holding that the degree of indifference exhibited by the appellant in the circumstances of this case justified the conclusion that it permitted the use of the hall on 22nd October for the performance of the work in question. Indeed I think no other inference could properly be drawn from the conduct of the appellant.

[13]

This appeal turns on the meaning to be attributed to the word "permits" in sub-sec. 3 of sec. 2 of the Imperial Copyright Act 1911 (adopted by the Commonwealth Copyright Act 1912), and on the application to that sub-section of the admitted facts of the case. Prior to the Act of 1911 the law, notwithstanding the liberal interpretation placed upon it by the judiciary, as in Marsh v. Conquest[1] and Monaghan v. Taylor[2], was insufficient to prevent what is nothing more or less than stealing other men's mental creations. In two respects material to this case the Imperial legislation of 1911, part of the international arrangement constituted by the Berlin Convention of 1908 and adopted by the Commonwealth Act of 1912, made a distinct effort to bring the statute law up to the manifest demands of morality. For the word "cause," which had been given a restricted meaning, there was substituted the word "authorize," and that word is now understood as importing the sense of "sanction, approve and countenance" (see Falcon v. Famous Players Film Co.[3]). Along with that significant change, there was inserted the sub-section now under consideration, which is a necessary complement in the scheme of protection. It extends the previous limited responsibility of proprietors of halls who merely hire them out for remuneration without being directly connected with the performance itself. The gist of the sub-section is that such a person who "permits" the performance of a copyright piece is to all intents and purposes as much an infringer of the copyright by providing for gain to himself the necessary means of infringement as if he directly produced the performance, unless he proves that "he was not aware, and had no reasonable ground for suspecting" that the performance would be an infringement. Once show that he permitted his hall to be used for the performance of a piece that in fact is copyright, he is liable unless he exculpates himself by proving that his actual participation in the wrong was innocent. That provision for his protection goes beyond the provision as to the civil liability of the actual producer. With regard to the latter it is true now, as it was in Lee v. Simpson[4], that "the statute would altogether fail to effect its object, if it were necessary to show that the defendant had a knowledge of the plaintiff's right of property." (See Byrne v. Statist Co.[5].) The hall proprietor, however, has a loophole of escape from civil liability if he satisfies the provision enabling him to establish what is peculiarly within his own knowledge. But his civil liability is not shown, even prima facie, unless the plaintiff proves that the hall proprietor, for his private profit, "permits" the hall to be used for the performance in public of the work.

[16]

As an illustration, a person "permits" his hall to be used for the public performance of a play or a song, if he knows or has reason to know or believe that the particular play or song (Performing Right Society v. Ciryl Theatrical Syndicate[9]) will or may be performed and, having the legal power to prevent it, nevertheless disregards that power and allows his property to be used for the purpose. For example, in Performing Right Society Ltd. v. Mitchell & Booker (Palais de Danse) Ltd.[10] McCardie J. held that the plaintiff's claim under sec. 2, sub-sec. 3, was rightly abandoned. But that was because the hall proprietors "did not know that the infringing performances would take place or that they were in fact taking place. They had no reasonable ground for suspecting that there would be an infringement of copyright by the band. No programme of music was printed or announced"[11]. The position was the very antithesis of the present case. But McCardie J. did not include as a reason that the defendants already had a contract which they were not bound to terminate though they had the right to do so had they known an infringement was contemplated. The permission relied on here by the respondent was on 22nd October 1927. On the bare facts of that evening there can be no doubt that the appellant, the owner of the property, did not prevent but did actually "permit" the public performance of the particular work. Without the permission of the appellant the performance could not have taken place there at all. As far back as 7th October the appellant was formally notified that the particular work was one of those which would probably be performed, and was threatened with proceedings if that happened. On 14th October, the day before the first concert, this notification was merely acknowledged, and the concert proceeded. The culpable "indifference" indicated by Bankes L.J. in the Ciryl Case[12] was openly displayed. Again, on 21st October the appellant was reminded by the solicitors for the copyright owners of the previous warning; and this was added: - "This warning has apparently been ignored by your Council, as a number of works have been performed at the concerts held to date, and other infringements are threatened by advertisements in to-day's press. We have to request your Corporation, as owners of the building, not to permit any infringement of our client's copyrights, and to inform you that if any such infringement occurs a writ will be issued against the Corporation," &c. The newspaper advertisements giving programmes referred to, expressly specify the song the subject of the action. No step was taken to prevent the performance, and the letter was merely acknowledged on 24th October, that is, two days after the infringement which took place on the evening of the 22nd. The "indifference" of the appellant to all but profit is a wilful shutting of the eyes and ears to the rights of others, and is again of the kind that affords cogent evidence of permission.

[22]

In the result, so far, the existence of the agreement of 9th September, even assuming it cast no legal obligation on the appellant to rescind it, at least affords no ground for depriving the appellant of the legal right to refuse to proceed with it. It elected to adhere to the contract, to receive the price and to hand over the hall for the evening, and to allow the hall to be used for the purpose of the pieces advertised being performed, rather than return or forego the proportionate part of the hire-money. In so acting it "permitted" the actual infringement on that night and, not having excused itself under the terms of the sub-section, is liable as an infringer. The opposite view would deprive the sub-section of any real effectiveness, because in many cases the only legal remedy would lie against a strolling player whose responsibility would be merely nominal or a company that McCardie J. in the case cited calls "a migratory thing"[19]. The result on this lower basis is perhaps more strikingly shown, though in no way different in principle, if applied to some other classes of acts. Suppose, with a similar power of ending a contract, a proprietor finds or has reason to believe that the hirer is intending to use the premises as a brothel, or for any other criminal purpose; and with this knowledge or belief elects to retain the contract and deliberately hands over to the hirer the premises for the evening and receives the rent: does he or does he not "permit" his premises to be used for the nefarious purposes? In my opinion he does "permit" his premises to be so used; he is really particeps criminis. But he is neither more guilty nor more innocent than the present appellant, applying merely the test of power to terminate the contract. The matter stands, however, still higher. Cowan v. Milbourn[20] shows that as soon as the party to a contract has reason to believe his property is intended to be used for an illegal purpose, he is not merely "entitled" but is "called on and bound by the law, to refuse his sanction to this use of his rooms" (per Kelly C.B., concurred in by Martin B.). On principle that must be so. What Sir John Salmond, in his posthumous work on Contracts (at p. 160), terms "the external condition of continued legality" works a determination of the bargain, a dissolution of the vinculum juris, as soon as the necessary facts appear, which constitute illegality. Intention of the parties as to this is immaterial; no personal intention can create a binding obligation to perform an agreement which either is in its inception or becomes during its existence an agreement to do what the law forbids. In my opinion, therefore, the appellant had no legal right to hand over the hall for the purpose of performing (inter alia) the song; because to perform it in the circumstances was a breach of positive law. The permission actually given on 22nd October was without any lawful obligation to support it.

[25]

The facts are few and simple. The Corporation on 12th September let the hall to J. C. Williamson Ltd. for four evenings in October (15th, 18th, 20th and 22nd) for the purpose of "vocal concerts by Joseph Hislop" (not for the purpose of singing any specific song or songs), and received the rent. On 7th October the plaintiff wrote to the Corporation stating that it had reason to believe that musical compositions would be performed as per attached list (over twenty items, including the song in question); that the performing rights in all the compositions were vested in the plaintiff by assignment; that if the Corporation permitted the hall to be used for the performances, it would commit an infringement, and would be sued; and that the Corporation might, by paying an annual licence fee to the plaintiff, get the use of the entire repertoire of the plaintiff. This letter, it will be noticed, came about three or four weeks after the letting of the hall and the receipt of the money. The Town Clerk acknowledged this letter by a letter of 14th October. It cannot be regarded as surprising that time had to be taken before answering, especially as the plaintiff's letter involved a novel responsibility for the conduct of lessees (or licensees, it matters not), and, possibly, a novel contractual relation with the plaintiff. There was no evidence even of the alleged copyright: registration itself did not take place till 8th October, the day after the plaintiff's letter; and in Melbourne, not Adelaide. Hislop sang the song on 15th and on 22nd. On 21st October the plaintiff's solicitor by letter threatened an action. It is not alleged that the Corporation saw any of the advertisements as to Hislop's proposed songs; but this second letter called attention to an advertisement of the song. It does not even appear that the Corporation had any meeting on 21st or 22nd October. So far as this position has been stated it is surely idle to talk of the Corporation as "permitting" the singing of this song. This action has, by consent, been tried on the motion affidavits; and there is not the slightest evidence of any "sanction, approval or countenance" given by the Corporation to the performance of the song in question. The Copyright Act does not put the lessor of the premises in the position of guarantor of copyright owners against breach of copyright on the part of the lessees: it merely forbids lessors (as well as other people) to "permit" for private profit the performance of a copyright work; and the word "permit" implies that the lessor has some control of the performers (Marsh v. Conquest[21]).

[33]

The reasons of the Supreme Court for its judgment are so frank and lucid that the fairest and most satisfactory way for me to show where I must dissent is to state the vital passage in full. After stating and commenting on sec. 2 (3) of the Act in a manner favourable to the Corporation, the learned Judges say: - "On the other hand there was one thing which the defendant might have done, but apparently did not do. When the letter dated 7th October was received it might have been transmitted or its contents notified to the responsible parties, together with some warning or protest or at least some indication of a desire on the part of the defendant that its hall should not be used for the purpose of infringement. We feel bound to say that in our opinion this omission evidences a degree of indifference which suggests that the defendant had no real desire to prevent its hall from being used for this purpose. There may have been some good reason for the omission; but if there was it has not been disclosed. The defendant's attitude was that it was not concerned to interfere; but in adopting this attitude we think that it failed to realize that there is at least some obligation to withhold countenance or support to what is commonly called piracy. This is really the crux of the case. We think that under the circumstances the defendant abstained from taking the reasonable step to prevent the performance of the particular work in question, although we cannot say that any protest would certainly have been effective. A fair view of the facts is this. The Town Clerk was in a position to enforce any protest he might see fit to make, and the plaintiff company, complaining of the omission of this step which the defendant might reasonably have taken is entitled to the benefit of any doubt there may be as to whether it would have proved effective. No point was made with respect to any question of private profit; and in our opinion the proper inference from the evidence is that the defendant on receipt of the letter of 7th October knew or had good reason to anticipate that the song I heard you singing would be performed, that it was within its power to prevent it by protesting, that it failed to take this reasonable step to that end, and that it thereby exhibited a degree of indifference which justifies the conclusion that it permitted the use of the hall for the purposes of the performances of the particular work complained of."

[38]

In the case before the Court the City of Adelaide, by an arrangement which was reduced to writing, let the Town Hall, Adelaide, to J. C. Williamson Ltd. on various days for the purpose of vocal concerts by one Joseph Hislop. At two of these concerts Hislop sang a song styled "I heard you singing," the copyright whereof is vested in the plaintiff, the Australasian Performing Right Association Ltd. The letting of the Town Hall for vocal concerts by Hislop does not relate particularly to the performance of this song and does not, therefore, establish any permission on the part of the Corporation of the City of Adelaide to the use of its Town Hall for its performance. It is said, however, that this permission should be inferred because when the Corporation learned that the performance was about to take place it did nothing. Mere inactivity or failure to take some steps to prevent the performance of the work does not necessarily establish permission. Inactivity or "indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred. It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorized the performance or permitted the use of a place of entertainment for the performance complained of" (Performing Right Society v. Ciryl Theatrical Syndicate[34]). The conduct of the Corporation must, therefore, be examined. It was informed by the plaintiff that the song in which it claimed copyright would be sung by Hislop at the Town Hall. By clause 16 of the letting agreement it was provided: "Notwithstanding that the engagement of the hall or any room may have been duly entered into in accordance with these conditions, and that the rent and deposit may have been paid, it shall be in the power of the Town Clerk, should he in the exercise of his judgment see fit, to cancel the letting and direct the return of the rent and deposit (or such portion of the rent as may cover the unexpired portion of hire) to the hirer, who hereby agrees in that case to accept the same and to be held to have consented to such cancellation, and to have no claim by law for loss or damage in consequence thereof." Despite the notice given to the Corporation, it neither exercised this power nor took any step to induce the hirer to prevent the performance. Now, the clause does not give the Corporation any control over J. C. Williamson Ltd. or Hislop or over concerts given by them in the Town Hall: all it authorizes is a termination of the contractual relationship constituted by the letting agreement. The failure to prevent that which a man can legally prevent may be evidence of his consent to its coming into, or continuing in, existence; but no inference of consent should be drawn against one who having no such right remains quiescent and declines to alter his legal relations in order to acquire such a right. The question whether the Corporation permitted the Town Hall to be used for its private profit was not argued, and that question must, therefore, be reserved.

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Corporation of the City of Adelaide v Australasian Performing Right Association Ltd [1928] HCA 10; (1928) 40 CLR 481 (23 April 1928)

Parties

Legislation Cited (2)

Cases Cited (1)