High Court of Ireland Decisions

1. The late Mrs Cunningham taught in Rutland Street National School in the city of Dublin for 44 years. In the early 1960s she taught religious knowledge and prepared the young children in her school for their first holy communion. She was obviously a talented and imaginative teacher. The method adopted by her was to recount for her pupils in her own words the events told in the gospels and she then required them to retell the stories she had told them before the whole class. What made Mrs Cunningham something of a pioneer was that she brought into her class a tape recorder and recorded the children retelling the gospel stories -- both, it would appear, as a means of helping them to remember the stories and for their enjoyment and the enjoyment of their class. In 1961 Mrs Gormley (who is now a married lady with five children of her own and the Plaintiff in this action) was a young girl of between six years and seven years and was a pupil in Mrs Cunningham's class. One of the events told by Mrs Cunningham to her pupils in preparation for their first holy communion was the choosing by Our Lord of the twelve apostles and Mrs Gormley was chosen by Mrs Cunningham to retell this story to the class. This she did and Mrs Cunningham recorded her doing so. It is the recital of this story which is the subject of the present claim for damages for breach of copyright which I am now considering. I will explain how the claim came about.

Knowledge of the way in which Mrs Cunningham taught religious knowledge spread outside her school and a film documentary about her and her pupils was made by the Radharc production team and transmitted on television by RTE. Mrs Gormley appeared on the programme (she was then about nine years old) recounting the story of the choosing of the twelve apostles. This action is not concerned with that broadcast. A long time later Fr D'Arcy (himself a well known broadcaster) found by chance a tape of some of the recordings made by Mrs Cunningham. Its provenance was then a mystery to him and he took the trouble of advertising to get some information about it. His efforts bore fruit and he was put in touch with Mrs Cunningham who told him that she had 'hundreds' of tapes and also how they had come to be made. Fr D'Arcy obtained Mrs Cunningham's permission to use them as part of a religious radio programme which he was then making. EMI Records (Ireland) Ltd became aware of Fr D'Arcy's programme and of the tapes he used and decided to produce commercially a tape of excerpts from Mrs Cunningham's tapes of the children reciting the gospel stories. The Defendant recognised Mrs Cunningham's rights under the Copyright Act 1963 and entered into an agreement with her (through her nephew as Mrs Cunningham was then very ill) by which it agreed to pay royalties on the sale of the tape it proposed to produce. It issued the tape under the somewhat minatory but nonetheless engaging title 'Give up yer aul sins'. On side two of the tape there is contained an excerpt from Mrs Cunningham's tape on which the Plaintiff is heard reciting the story entitled 'Then there were twelve', which had been recorded many years previously when the Plaintiff was a young child.

The Defendant's tape was a considerable commercial success and was featured on the well-known television programme 'The Late Late Show'. Mrs Gormley felt that her contribution to the success of the tape had not been properly recognised and sought advice from her solicitors. They wrote on 2 June 1993 claiming that the Plaintiff was the author of the story 'And then there were twelve', that the tape issued by the Defendant amounted to a breach of Mrs Gormley's copyright and compensation was requested. The Defendants replied on 6 June 1993 that the tape had been distributed under licence from Mrs Cunningham and her nephew. Shortly thereafter these proceedings were instituted.

I should begin my examination of this claim by briefly outlining the relevant legal provisions which have to be applied to the facts of this case.

The Law

The Copyright Act 1963

S 7(1) of the 1963 Act defines 'copyright' as:

. . . the exclusive right, by virtue and subject to the provisions of this Act, to do, and to authorise other persons to do, certain acts in the State in relation to that work which, in the relevant provision of this Act, are designated as the acts restricted by the copyright in a work of that description.

S 8 deals with copyright in 'every original literary, dramatic or musical work'. Subs 1 makes provision for works which are 'unpublished' (as the Plaintiff's story was) within the meaning of the Act. It provides:

Copyright shall, subject to the provisions of this Act, subsist in every original literary, dramatic or musical work which is unpublished and of which the author was a qualified person --
 
(a) at the time at which the work was made, or
 
(b) where the making of the work extended over a period, for a substantial part of that period.

By s 8(4) the term of copyright is, 'the lifetime of the author of the work and a period of 50 years from the end of the year in which the author died'.

Ownership of copyright is dealt with in s 10. This provides that 'the author' of an 'original literary . . . work' shall be 'entitled to any copyright subsisting in the work by virtue of this part of the Act'. The Plaintiff is a 'qualified person' within the meaning of s 8 (as she is an Irish national) and so if she can be regarded as the 'author' of the story which she recited and if the story is an 'original literary work' within the meaning of the Act then the statute confers on her the copyright in it and this right has been infringed by the Defendant.

Part II of the Act contains provisions relating to 'copyright in original works' and contains the section to which I have referred. A different kind of copyright is contained in Part III of the Act which deals with 'copyright in sound recordings, cinematography films, broadcasts etc'. It is under this part that Mrs Cunningham's rights arise.

S 17(1) of the Act provides that:

Copyright shall subsist, subject to the provisions of this Act:
 
(a) In every sound recording of which the maker was a qualified person at the time the recording was made.

The Plaintiff does not in any way contest Mrs Cunningham's claim to copyright as the maker of the sound recording in the story she told but claims that she, the Plaintiff, is also entitled to copyright, the author's copyright referred to in Part II of the Act, because her oral recitation of the story was a 'literary work' of which she was the author.

THE ISSUES
 
(a) The 1963 Act, as just pointed out, confers a copyright protection on 'original literary works' and the first issue in this case is whether the recounting of a story is a 'literary work'.

The 1963 Act does not define 'literary work'. It is a phrase which first appeared in a statute dealing with copyright law in the Copyright Act 1911. This conferred copyright in 'every original literary work' in the circumstances set out in s 2 of the Act without defining what an original literary work was. The phrase was, however, judicially explained by the High Court in England in a case which immediately became a leading one. University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 concerned a claim to copyright in examination papers (a claim which was allowed by the court). In the course of his judgment Peterson J had to consider what was meant by the phrase 'literary work' in s 2 of the 1911 Act. He pointed to the difficulties in defining 'literary work' but concluded that it was not confined to the sense in which it was applied 'for instance, to Meredith's works and the writings of Robert Louis Stephenson'. He observed that in speaking of such writings 'one thinks of the quality, the type and the literary finish which they exhibit' but he pointed out that under the Act of 1842, which protected 'books', 'many things which had no pretensions to literary style acquired copyright; for example a list of registered bills of sale, a list of foxhounds and hunting days, and trade catalogues'. He said that he had no ground for concluding that the Act of 1911 was intended to curtail the rights of authors and he concluded:

In my view the words 'literary work' cover work which is expressed in printing or writing, irrespective of the question whether the quality or style is high.

The judgment of Peterson J received express approval in many later cases. In British Oxygen Co v Liquid Air Ltd [1925] Ch 383 it was quoted with approval in full at p 390 and the court held that a business letter was a 'literary work'. The 1911 Act was repealed and substantially re-enacted in this country by the Industrial and Commercial Property (Protection) Act 1927. It conferred copyright on citizens of Saorstat Eireann in 'original literary works' but like the 1911 Act the 1927 Act did not define 'literary work'. The 1963 Act repealed the 1927 Act and, again, conferred a copyright on the author of 'an original literary work' without defining the term.

If, for the purposes of the Act, a literary work is a work which is expressed in writing or printing then it would appear that this claim must fail. The Plaintiff resists this conclusion by submitting that the fact that her story was recorded fundamentally alters the legal situation by virtue of certain of the provisions of the 1963 Act on which she relies.

The first is the definition section, s 2(1) of the Act. This defines 'writing' as 'any form of notation, whether by hand or by printing, typewriting or any other process'. Referring to this provision the Plaintiff was asked in a notice for particulars whether, if the work was not committed to writing, to state what form of notation is relied on for the purpose of establishing that the work is entitled to copyright. In a reply (of 31 January 1994) the Plaintiff claims that the story was her own oral composition and that the form of notation relied on is 'recitation'. This answer was amplified in oral submissions at the hearing. It was said that the tape recording of the oral recitation amounted to a 'form of notation' of the Plaintiffs work and thus because of the extended meaning of 'writing' given by the section the oral composition was a 'literary' work. I am afraid I cannot agree. I do not think that the recording of the Plaintiff's voice on a tape amounted to a 'form of notation' as that phrase is ordinarily understood. A 'notation' is defined in the Oxford English Dictionary (2nd ed) as 'the process or method, of representing numbers, quantities, etc, by a set or system of signs'; hence, any set of symbols used to denote things or relations in order to facilitate the recording or considering of them. To come within the definition, a 'notation' in my opinion must be in some visible form which can be comprehended by someone reading it and who understands the system employed and the extended definition of 'writing' in s 2 of the Act does not, in my view, support the Plaintiff's contention that her work, though given orally but at the same time recorded on tape was a 'literary' one for the purposes of the Act.

A second argument was based on s 8 and s 3(a) of the 1963 Act. S 8 provides that copyright shall subsist in every literary work which is unpublished and of which the author was a qualified person 'at the time at which the work was made'. S 3 of the Act contains supplementary provisions as to interpretation and subs 4 of that section provides that references in the Act to the time at which a literary work was 'made' are to be taken as references to the time at which it was first reduced to writing or 'some other material form'. It is accepted that the Plaintiff's recitation was not reduced to writing but it is claimed that it was reduced to 'some other material form' when it was tape-recorded by Mrs Cunningham and that accordingly copyright in the work subsists by s 8 at the time at which the story was (a) recited and at the same time (b) tape recorded.

Again, I find myself in disagreement with the Plaintiff's submissions. S 8 does not define original literary works; it merely defines the time at which copyright in an original literary work will subsist -- in the case of unpublished original literary works of which the author was a qualified person at the time at which the work was made. If the work was not a 'literary work' when it was made then no copyright would subsist in it. And if it is correct that a 'literary work' is a work which is in writing or is printed (as I believe to be the case) then a verbal recitation of a story does not become a 'literary work' by virtue of the provision of a section relating to the time from which copyright will subsist. Secondly, as the effect of s 8 and s 3(4) is to confer copyright on an author who was a qualified person at the time at which the work was made, this means that the reduction of the work to writing or some other material form must have been made by the 'author' of the work. As this did not happen in this case, I do not think the section could assist the Plaintiff. In my opinion this oral recitation by the Plaintiff of a story told her by her teacher did not constitute a 'literary work' for the purposes of the Act.

The conclusions which I have reached are supported by a consideration of the statutory changes in the law of copyright in England and textbook comments on that law. The Irish Copyright Act 1963 was largely an enactment in this country of the British Copyright Act 1956 with suitable adaptations necessary to confer copyright on citizens of this country. The 1956 Act was amended significantly in England by the Copyright Act 1988. S 3(1) of that Act contained a statutory definition of a 'literary work' which was not in the 1956 Act (nor in the Irish 1963 Act). It defined 'literary work' as meaning 'any work other than a dramatic or musical work, which is written spoken or sung and includes a table or compilation and a computer programme'. Thus the law was changed -- a 'literary work' by virtue of the new enactment included not only any written or printed work but also any work 'spoken or sung'. It is said on behalf of the Plaintiff that this merely 'clarifies' the position which existed under the 1956 Act. I do not think that this is so -- quite clearly the law of copyright was altered in the 1988 Act to confer copyright on works which are 'spoken or sung' as well as works which are written. Two out of three of the principal textbook writers commenting on the English Act of 1956 support the conclusions outlined above. In the 1980 edition of Copinger and Skone James on Copyright the definition of 'literary work' given by Peterson J in University of London Press Ltd v University Tutorial Press Ltd was quoted with approval (paragraph 152) and the authors whilst commenting that 'some form of notation' is essential in order that a work should be a 'literary work' concluded that:

A speech or lecture, even if recorded on a dictaphone, sound film or other recording device, would not be entitled to copyright protection as a literary work, though the recording itself might be protected as a sound recording under s 12 of the Act of 1956.

In volume 9 of Halsbury's Laws of England (4th ed, published prior to the 1988 Act) the author states (paragraph 835) that 'literary work' covers work 'which is expressed in print or writing, irrespective of whether the quality or style is high and is used in the sense of written or printed matter' and quite clearly the author is of the opinion that an oral recitation of a story would not be a 'literary work' within the meaning of the 1956 Act. The opposite view (with which I, with respect, do not agree) was expressed in the 1980 (1st) edition of Laddie, Prescott and Vittoria, The Modern Law of Copyright and Designs. The authors there expressed the opinion that it was an 'open question' as to whether any material form of fixation, such as a tape recording, would make the work a 'literary work' or whether 'writing' was always necessary. They emphasised that the matter was not free from controversy and that it was for the courts to provide the authoritative solution. They submitted, however, that a work is not a 'material thing' but an intellectual production that is the fruit of the author's mental labours (paragraph 2.14) and argued that fixation in any material form is enough for the purposes of the law of copyright and that 'writing' is but one possible manner of 'fixation'.

Notwithstanding the views of the author in The Modern Law of Copyright and Designs I am satisfied that the construction I have placed on the meaning of 'literary work' in the 1963 Act is the correct one and that it is supported by very strong authority in the United Kingdom.

THE SECOND ISSUE

If the oral recitation of the story of the choosing of the twelve apostles is not a 'literary work' then this claim must fail. I think it also fails for another reason. Copyright can only be claimed by the 'author' of an 'original' literary work. I do not think that a child who recites a story which he or she has learnt from a teacher can be said to be the 'author' of an 'original' work. Under the 1963 Act I think the court should construe 'author' as meaning the originator of an original work and whilst the child will undoubtedly have used a lot of its own words in recounting a story it has been told (unless it has learnt the story off by heart from the teacher), the expression of the resulting story does not make the child its 'author'. Charles Lambe when narrating in prose the stories of Shakespeare's plays undoubtedly was the 'author' of a 'literary work' but I do not think that a child who has been told a story and endeavours to repeat it can be said to be the 'author' of a literary work within the meaning of the Act.

The intention of parliament has to be borne in mind. By copyright legislation parliament intended to reward the skills involved in producing an original literary work -- not to reward the good memory, verbal acuity, and gift of articulation of the bright child who entertainingly recounts a story she has been told. Furthermore it is to be borne in mind that in the present case had Mrs Cunningham written down the stories which she told her pupils or even if she had notes of the stories she told them she would be entitled to author's copyright under Part II of the 1963 Act as well as a recorder's copyright under Part III of the Act. Had she done so I do not think her pupils could each be said to be an 'author' of the stories which she told them when they, in their own words, retold them. Her failure to do so does not transform her pupils into authors.

In summary, therefore, I must reject the Plaintiff's claim because (a) her recital of the story was not a 'literary work' and (b) in reciting the story she was not the author of an 'original literary work'.