PPL can sue UK Government for failing to implement EC Directive

October 2004

Record Labels, Collection Societies
Phonographic Performance Limited vDepartment of Trade & Another

In a trial relating to preliminary issues in an action sought by the PPL against the DOT and the Attorney General the Vice Chancellor, Sir Andrew Morritt, held that PPL did have a right to bring an action as the UK was in continuing breach by failing to implement article 8.2 of the EC Rental Directive 92/100/EC to provide for ‘ a single equitable remuneration is paid by the user if a phonogram is published form commercial purposes or a reproduction of such a phonogram is used for broadcasting by wireless means of for … communication to the public. This should have been implemented by July 1 1994. However the UK Limitation Act 1980 (s2) provides that actions must be brought within six years from the date at which the cause of that action accrued. The Vice Chancellor held that as there were repeated failures to implement, PPL were not time-barred by reason of delay in brining the action ten years after the first failure of the UK Government. The UK Government needed to amend sections 67 and 72 of the Copyright Designs & Patents Act 1988 which provide for royalty free use of sound recordings in ‘not for profit’ clubs and societies (s67) and for the free showing or playing of broadcast and cable programmes (s72). The PPL therefor have been allowed to bring an action that the UK should have amended the CDPA 1988 by repealing sections 67 and 72 and the claim is not statute barred and a claim could be brought for any loss sustained in the six year period immediately preceding the issue of proceedings in March 2003.

The Vice Chancellor added that the PPL’s action could be by way of an original action (since this was not statute barred) or by way of judicial review. The choice of either might be an abuse of process and how to exercise that jurisdiction would depend on all the relevant circumstances including matters occurring before the proceedings were instituted and which remedy was in the circumstances more appropriate. In Morritt VC’s judgement the proceedings were essentially private law proceedings and should be brought by ordinary action.

Judgement 23 July 2004
The Times Law Reports 27 August 2004

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