Performing Right Ltd v B4U Network (Europe) Ltd is a Chancery Division decision dating back to 22 October, but this blogger has only just got round to dealing with it. The judge, Mr Justice Vos, is now one of the regular IP judges in England and Wales. The analysis below is based on a note published on subscription-only service Lawtel; the decision is an extempore one which is not available on BAILII.
The composers subsequently notified the PRS of the composition of a song which had, as B4U conceded, been broadcast on its United Kingdom music channel. The PRS claimed that, as copyright had vested in it under the Copyright, Designs and Patents Act 1988 (CDPA) s.91(1) by virtue of a future assignment, B4U's broadcast infringed its copyright because B4U did not hold a valid licence from it.
If you have had to read this paragraph several times to satisfy yourself either (i) that you have understood it or (ii) that this argument is unintelligible nonsense, don't worry, you are not alone ...
Vos J must have taken a deep breath before deciding that this was something he could decide. After all, as he observed, if the court was satisfied that it had all of the evidence necessary for the proper determination of a point of law, and that the parties had had an adequate opportunity to address it in argument, the court should jolly well grasp the nettle and decide it. But how?
The court's task was to construe the two assignments: the agreements with the PRS agreements and the commissioning agreement. In doing so, it could be said that, unless the later-in-time commissioning agreement had already whisked away the copyright from under the noses of the PRS, the PRS agreements, being the first assignments in time, would prevail.
In reality, Vos J found, the commissioning agreement did not whisk away any copyright in the song. The relevant words in the PRS agreements were not a condition precedent but a present valid assignment of future rights and, as the PRS maintained the defence was based on a difference without a difference. Taking a look at the CDPA's s.11 (which dealt with ownership of authors' works) and s.91 (which dealt with assignment), he affirmed that there was an effective assignment to the PRS of future copyright where it vested in the two composers under s.11, where the first in precedence was the first in time. This result was not commercially absurd, as had been suggested, but rather was the outcome that was to be expected. The PRS agreements were contracts to allow the PRS to collect royalties for music in the UK as first owners of copyright; they did not contain a condition precedent.
Since there was no real prospect that B4U could defend that part of the infringement claim, judgment was given for PRS.