Full case report

Phonographic Performance Ltd v DTI

Reference [2004] EWHC 1795 (Ch); [2004] 1 WLR 2893; [2005] 1 All ER 369; [2005] RPC 8; [2004] EMLR 647; The Times 27 Aug 2004
Court Chancery Division

Judge Sir Andrew Morritt V-C

Date of Judgment 23 Jul 2004


Summary

Copyright – Limitation – Damages – Community Directive on copyright into national law – Consequential loss – Whether fresh claim each time loss suffered – Whether statute-barred – s.2 Limitation Act 1980 – Art 8(2) Council Directive 92/100/EEC


Facts

The Claimant company’s membership includes over 3,000 UK record companies. These members assign the right to play in public sound recordings in which they have rights to the Claimant, allowing the Claimant to subsequently licence others and collect and distribute payments. ss. 67 and 72 of the CDPA 1988 provided for certain defences to copyright infringement. Under Art 8(2) Council Directive 92/100/EEC, member states are obliged to provide for the payment of a single equitable remuneration for the public broadcast of phonograms. Art 15(1) required implementation of the Directive by 1 July 1994. Regulations intended to implement the Directive were made in November 1996, but did not affect ss.67 and 72. In 2003 the Claimant brought proceedings against the Crown for breaching its obligations under the Directive. The Crown argued that any claim arose on 1 July 1994 and was accordingly statute-barred under the Limitation Act 1980.


Issue

Whether the facts gave rise to a single claim, which would be statute-barred, or whether a fresh claim arose each time damage was suffered.


Held

The claim was not statute-barred because it was in respect of a continuing breach of duty and was a cause of action in which damage was an essential ingredient. Accordingly, a fresh claim arose each time damage was suffered. Damages were therefore recoverable for loss sustained within the six years immediately preceding the issue of proceedings on 10 March 2003.


Comment

The failure by a government properly and fully to implement a EU Directive gives rise to a cause of action. It is comparatively rare for such claims to be made, but the claim made by PPL shows that a failure fully to implement could be very costly for the Government.


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