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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B4U Network (Europe) Ltd v Performing Right Society Ltd  EWCA Civ 1236 (16 October 2013)
Cite as:  EWCA Civ 1236,  ECC 3,  BUS LR 207,  FSR 17,  WLR(D) 385,  Bus LR 207
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
The Hon. Mr Justice Vos
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
LORD JUSTICE UNDERHILL
| B4U Network (Europe) Limited
|- and -
|Performing Right Society Limited
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Robert Howe QC (instructed by Taylor Wessing Llp) for the Respondent
Hearing date: 4th July, 2013
Crown Copyright ©
Lord Justice Moses:
"absolutely for all parts of the world the rights which belong to you on the date of this Agreement or which you may acquire or own whilst you remain our member".
I have underlined the words which are central to this appeal.
(a) The Music Directors hereby confirm and agree that the entire copyright (if any) or any performer's rights, if any, or any other rights arising from the Services or the product of the Services of the Music Directors, including without limitation the Music shall vest with the Producer as the first owner of the same pursuant to this contract of service executed. This shall be applicable to all present and future work arising out of the Services. This right shall be exercised for the whole period of the right and in all territories of the world;
(b) The Music Directors hereby expressly consent to the incorporation of the Music and the performance of the Music Directors, if any, arising consequent to the rendering of the Services in the Film. Consequent to the same the Music Directors confirm that the Music Directors do not have and shall not exercise any performer's rights under the provisions of the Copyright Act 1957 ('the Act');
(c) Without prejudice to the aforesaid, in the event of any copyrights or any other rights, including performer's rights being vested by law in the Music Directors, in respect of the Music, the Music Directors hereby assign to the Producer without any limitation, reservation or condition the entire copyright and performer's rights and all other right, title or interest of whatsoever nature ... whether vested, contingent or future in or to the product, results or proceeds ... of the Services ... whether now known, or in the future created to which the Music Directors are now or may at any time after the date of this Agreement be entitled by virtue of or pursuant to any of the laws in force in any part of the world to hold to the Producer, its successors, assignees, and licensees absolutely for the whole period of such rights for the time being capable of being assigned..."
"(1) Where by an agreement made in relation to future copyright, and signed by or on behalf of the prospective owner of the copyright, the prospective owner purports to assign the future copyright (wholly or partially) to another person, then if, on the copyright coming into existence, the assignee or another person claiming under him would be entitled as against all other persons to require the copyright to be vested in him, the copyright shall vest in the assignee or his successor in title by virtue of this subsection.
(2) In this Part –
'future copyright' means copyright which will or may come into existence in respect of a future work or class of works or on the occurrence of a future event, and
'prospective owner' shall be construed accordingly, and includes a person who is prospectively entitled to copyright by virtue of such an agreement as is mentioned in subsection (1) ..."
"9(1) In this Part 'author', in relation to a work, means the person who creates it. ..."
"11(1) The author of a work is the first owner of any copyright in it, subject to the following provisions.
(2) Where a literary, dramatic, musical or artistic work ... is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.
(3) This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations)."
There is no suggestion in this appeal that the exceptions to the general rule applied.
"…it will often be a term of the contract of the author's engagement that the "employer" should own the copyright….
(a) If the contract amounts to a valid assignment of future copyright, the copyright will vest in the employer as soon as it comes into existence." (5-10, p.261)
"creates an immediate charge upon the property coming into existence, independently of the contract to execute some further charge and cannot be said to rest in contract alone" .
Accordingly, the assignment of future copyright in Cuban music effectively transferred equitable title, despite the Castro regime's decree which abrogated the contracts. At the time of the decree, some of the copyrights had not yet come into existence (the music had been composed before the decree took effect, but no English copyright in that music existed at the time) (Peer International Corporation v Thermidor Music Publishers  Ch 212). Vos J relies on this case for the proposition that the property right created by the equitable assignment survived the abrogation of the contracts (see , where he cites 18 paragraphs of the judgment of Neuberger J).
Lord Justice Kitchin:
"you transfer to us absolutely for all parts of the world the rights which belong to you at the date of this Agreement or which you may acquire or own whilst you remain our member."
Lord Justice Underhill: