Associated Broadcasting Co v Capac Privy Council 1954

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ASSOCIATED BROADCASTING CO. LTD. et al. v. COMPOSERS, AUTHORS & PUBLISHERS ASSOCIATION OF

CANADA LTD.

21 C.P.R. 79

Judicial Committee of the Privy Council

Viscount Simonds, Lords Oaksey, Reid, Tucker and Somervell of Harrow

December 1, 1954

Copyright -- Performing rights -- Gramophone

Copyright -- Performing rights -- Gramophone -- Copyright Amendment Act, s. 10B(6a) -- Statutory

interpretations -- Word -- Ordinary commercial meaning -- Not scientific meaning.

In an infringement of copyright proceedings the defendants sought to invoke the provisions of s. 10B

6(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 appeal

by 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 performance

in public of musical works are the component parts or means composing a gramophone and producing

the same result.

Some of the instrumentalities by which the performance is given are located in the studio of the

appellant (Associated) and are under its control. Some are located in the premises of each of the other

appellants and are under their control. Instrumentalities or wires of the Bell Telephone run between the

building of the appellant (Associated) and the building where the other appellants carry on their

respective business.

Held, per Viscount Simonds: It cannot be assumed that whatever mechanism, upon an analysis of its

functions, 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 scientific

sense but in its popular or commercial sense. In that sense it does not embrace a mechanism including

an 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


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of the present appeal. Since the Privy Council refused to give an extended meaning to the word

gramophone, the beneficial interpretation given to s. 10B(6a) under the decision of Vigneux v. C.P.R.S., 2

C.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 applicable

to 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. 247

and 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 by

VISCOUNT SIMONDS

VISCOUNT SIMONDS:--The short question in this appeal, which is brought by special leave from an Order

of the Court of Appeal for Ontario, is whether the appellants have infringed the copyright in certain

musical works which, so far as concerns the sole right to perform those works in public throughout

Canada, 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 Copyright

Amendment 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 in

any place other than a theatre which is ordinarily and regularly used for entertainments to which an

admission 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 as

possible, provide for the collection in advance from radio broadcasting stations or gramophone

manufacturers, as the case may be, of fees, charges and royalties appropriate to the new conditions

produced by the provisions of this subsection and shall fix the amount of the same. In so doing the

Board 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, in

consequence 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 the

respondents or that they have been performed in public. The performances were in fact given in certain

premises in Toronto occupied by the appellants Reibsten, Dennis and Westminster Hotel Ltd.


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respectively. None of these premises was a "theatre which is ordinarily and regularly used for

entertainments to which an admission charge is made". No fees were therefore collectable from the

appellants 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 not

alleged 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 given

and 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 best

be 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 a

magnetic 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 amplifier

which 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 the

Associated Broadcasting Co, Ltd. hereinafter called A.B.C. and are under the sole control of A.B.C., its

servants or agents.

Instrumentalities numbered 9 and 8 are located in the premises of each of the other appellants and are

under their control. They are owned by A.B.C. and were installed in the premises of the other appellants

by A.B.C. pursuant to its contract with those other appellants.


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Instrumentalities numbered 7a are wires of the Bell Telephone Co. of Canada running between the

building in which A.B.C. has its studio and the buildings in which the other appellants carry on their

respective businesses.

That drawing is not quite complete. Inserted between No. 7 and No. 7a is a step transformer. This is

made necessary by the fact that in order to prevent electrical induction interfering with parallel wires ofthe Bell Telephone system serving other customers only a low current is transmitted over the wires

shown as the 7a on the drawing.

The drawing shows only one turn-table. In fact there are four turn-tables connected by gears so that the

operator in the studio of A.B.C. may disengage one turn-table and engage another without any

appreciable interruption of the programme.

The equipment in the premises of each of the appellants other than A.B.C. may be disconnected from

the balance of the equipment by the operation of a switch, not shown in the drawing, so that at any

given time, one or more subscribers and the patrons in his or their premises may be hearing a musical

programme originating in the studio of A.B.C. and other subscribers and their patrons may not. If all the

subscribers leave the instrumentalities which are located in their premises connected with the balance

of the system, they all hear the same programme. By throwing out that switch, any subscriber may

[21 C.P.R. Sec. II - p. 83]

use parts numbered 8 and 9 together with microphones to make more audible programmes originating

in his own premises.

The contracts between A.B.C. and the other appellants are all similar in form. They are headed

"Arrangement for 'Music by Muzak' service".

By these contracts A.B.C. agrees to supply to the subscriber "Music by Muzak" programme service to the

localities therein described between the opening and closing hours of the subscribers' establishment. As

part of the Muzak Service A.B.C. agrees to instal and keep in operating condition for the reception of

Muzak Programmes in the subscribers' premises certain equipment specified in the contract.

This system is operated as follows: An employee of A.B.C. places a record or disc on turn-table No. 2.

That turn-table is then made to revolve by the power of the motor No. 1. The stylus or needle No. 3 is

placed in contact with the sinuous groove in the record and transmits to the playing head, No. 4, sound

waves identical with those which impressed the record when it was made. Those sound waves are

converted into electrical impulses in the playing head by the action of the magnetic coil and are carriedalong the wires No. 6 to the amplifier No. 7.

At that point, all the operations in the studio of A.B.C. end. The electrical impulses leave the amplifier

No. 7 and are transmitted over the Bell Telephone wires to the premises of the subscriber. The step

transformer -- not shown in the sketch -- increases the force of those electrical impulses and they are

carried to the No. 9 and thence to the loud speaker No. 8 where they are transmitted back into sound


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vibrations and emitted into the air as an acoustic reproduction of the musical work contained in the

record.

It is claimed, and so the learned trial Judge [14 C.P.R. 81] found, that a public performance by means of

this equipment, mechanism, or sum total of instrumentalities is a public performance by means of a

gramophone within the meaning of the section. The argument in favour of this claim is nearly summedup in the appellants' case by saying that "the component parts or means used by the appellants for the

performance in public of musical works are the component parts or means composing a gramophone

and producing the same result".

[21 C.P.R. Sec. II - p. 84]

It appears to their Lordships however that the short answer to this argument, and therefore to the

appellants' case, is that it begs a question, what is the meaning of the word "gramophone" in the

section, by assuming that whatever mechanism upon an analysis of its functions is seen to do what a

gramophone does is therefore properly called a gramophone. It was, as their Lordships understood the

argument, conceded that each one of the several components of the mechanism that has been

described was an essential part of the gramophone. Therefore, to take a crucial test, the wires under the

control of the Bell Telephone Co., which were laid under parliamentary authority and might have

extended for any distance, were a part of the gramophone. Their Lordships agree with the learned

Judges of the Court of Appeal in thinking that this is nothing less than to distort the meaning of the word

"gramophone". It does not appear, that that word has acquired a scientific meaning other than its

popular or commercial meaning, and in the latter meaning it clearly does not embrace a mechanism

which (to take the same test) includes an undefined length of wiring laid, perhaps under or over public

streets, under the powers given by Parliament not by the manufacturer or user of the mechanism but an

independent authority.

This concludes the case and their Lordships do not think it necessary, to examine the arguments which

were based on the use in the section of the words "owner", "user" or "manufacturer" in connection with

"gramophone" though they appear to support the view they have taken. Nor can they derive any

assistance from an examination of the section in the light of the alleged policy of the Act. It is no doubt

proper and useful to be informed of the state of the law and of the development of the industry at the

time when the relevant section of the Copyright Act was enacted, but, to whatever conclusion such an

examination might lead, their Lordships find it impossible to ascribe to the familiar word "gramophone"

a meaning which, now as then, it is incapable of bearing.

Their Lordships will therefore humbly advise Her Majesty that this appeal should be dismissed. Theappellants must pay the costs of the appeal.

Appeal dismissed.

[21 C.P.R. Sec. II - p. 85]

Associated Broadcasting Co v Capac Privy Council 1954

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