ARCHIBOLD v. C.F.A.O. [1966] GLR 79

Division: HIGH COURT, ACCRA

Date: 25 JANUARY 1966

Before: HAYFRON-BENJAMIN J.

CASES REFERRED TO

(1) C.F.A.O. v. Archibold [1964] G.L.R. 718, S.C.

(2) Caxton Publishing Co. v. Sutherland Publishing Co. [1939] A.C. 178; [1938] 4 All E.R. 389; 108 L.J.Ch. 5; 160 L.T. 17; 55 T.L.R. 123; 82 S.J. 1047, H.L.

(3) Chapman v. Pickersgill (1762) 2 Wils. 145; 95 E.R. 734. (4) Revis v. Smith (1856) 18 C.B. 126; 25 L.J.C.P. 195; 27 L.T. (o.s.) 106; 20 J.P.453; 139 E.R. 1314.

(5) Pasley v. Freeman (1789) 3 T.R. 51; 1 R.R. 634; 100 E.R. 450.

[p.80] of [1966] GLR 79

(6) Lumley v. Gye (1853) 2 E. & B. 216; 1 W.R. 432; 22 L.J.Q.B. 463; 17 Jur. 827; 118 E.R. 749.

(7) Rylands v. Fletcher (1866) L.R. 3 H.L. 330; 37 L.J.Ex. 161; 19 L.T. 220; 33 J.P. 70.

(8) Hedley Byrne & Co., Ltd. v. Heller & Partners Ltd. [1964] A.C. 465; [1963] 3 W.L.R.101; [1963] 2 All E.R. 575, H. L.

(9) Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164; [1951] 1 T.L.R. 371; [1951] 1 All E.R. 426; 95 S.J. 171, C.A.

(10) White-Smith Music Publishing Co. v. Apolo Co. 209 U.S. 1 (1907).

(11) International News Service v. Associated Press 248 U.S. 215 (1918).

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION to an action for damages for the conversion of unpublished songs. The facts are fully set out in the ruling.

COUNSEL

N. O. Annan for the plaintiff.

J. B. Quashie-Idun for the defendants.

JUDGMENT OF HAYFRON-BENJAMIN J.

The plaintiff by his writ claims £G25,000 damages for conversion of the plaintiff’s musical works in twelve songs taped by the defendants onto Senaphone label gramophone records; the said records were sold by the defendants as wholesalers to other retailers and also by retail to the public at the price of seven shillings per record without the plaintiff’s consent first had and obtained. The writ was taken out on 30 December 1963.

The plaintiff’s case as appearing in his pleadings is that he is the owner of twelve musical works entitled Rain Drops, Take her in your Arms, Follow your Lover, Anne Claire, Where are you, Sailing Home, Baya Mambo, Emma Wawa, Sweet Adelina, Negrita Samea, Amada Mia and last but by no means the least, Little Auctioneer.

He states that he is the owner of the copyright therein and of the sole right of taping and recording such works on gramophone records and of selling such records to the public and to other retailers. The defendants were in the years 1956-61, owners of the record label, Senaphone and were manufacturers of gramophone records with the said Senaphone label. They taped and recorded the said twelve records on diverse dates between 1959, 1960 and 1961, without the plaintiff’s consent first being obtained. They sold these records by wholesale to other retailers and also by retail direct to the public on diverse dates during the years 1959 and 1960, the last of such wholesale and retail sales being made in 1961 by auction to other retailers and the public without the consent of the plaintiff.

[p.81] of [1966] GLR 79 In all, according to the plaintiff the defendants sold 30,000 copies of each record, making a total of 360,000 records sold at seven shillings per record and they converted the proceeds to their own use. The plaintiff therefore claims the substantial sum of £G25,000 as damages.

The defendants in their statement of defence deny that the plaintiff is the owner of the songs and also that he is the owner of the copyright in the said songs. They go further and state that no copyright exists in the songs at all. They admit recording the said songs on the Senaphone label, but deny recording or selling any of those songs in or after the year 1959. They admit that they sold records at a public auction in 1961, but deny that any of the records mentioned in the statement of claim were sold that day. By 1961 they had already closed down their recording business because it was unprofitable. This was in 1959. The defendants then went on to allege that on 10 September 1962 the plaintiff in suit No. 618/1962 brought an action against the defendants in respect of the same twelve records mentioned in the statement of claim. The claim in the said suit was as follows:

“(a) The plaintiff ‘s claim is for £G5,000 damages for infringement of copyright in musical works.

(b) An account of all the said records made or sold by the defendants and payment to plaintiff at the rate of three shillings per record made or sold or both by defendants.

(c) Perpetual injunction against defendants, their agents and servants from continuing the said infringement.”

The sum claimed therein was later amended to £G12,000. On 26 June 1963 Prempeh J., gave judgment for the plaintiff for the sum of £G10,000 with 400 guineas costs.

The defendants appealed against the said judgment, and at the date of filing the writ or the pleadings in this case the appeal had not been determined by the Supreme Court. The defendants contended in their statement of claim that in the event of Prempeh J.’s judgment being upset, the plaintiff’s case would not be maintainable. As things turned out, the judgment was upset by the Supreme Court in a judgment read by Adumua-Bossman J.S.C. and the plaintiff’s claim was dismissed: see C.F.A.O. v. Archibold.1 The defendants further contend in the statement of defence that the claim is statute-barred by virtue of section 10 of the Copyright Act, 1911.2

The issues that arise for determination on the pleadings therefore can then be enumerated thus: [p.82] of [1966] GLR 79

(a) Whether or not the plaintiff is the owner, i.e has property in the musical works mentioned in his statement of claim. The question whether the plaintiff is the owner of the copyright in the works is relevant only if the action is brought and can only be maintained under the Copyright Act, 1911, which is a statute still applicable to Ghana.

(b) Whether or not the plaintiff is estopped by the judgment of the Supreme Court in C.F.A.O. v. Archibold from maintaining the claim.

(c) Whether if not so estopped, he is nevertheless estopped by the fact that having chosen the remedy of suing for infringement of copyright and failed, he can maintain a suit for conversion; and finally,

(d) Whether or not the claim is statute-barred by virtue of section 10 of the Copyright Act, 1911. When this case came on for trial on 25 May 1965 counsel for the defendants made a formal admission before the court that the defendants do not dispute that the plaintiff is the composer of the songs mentioned in the statement of claim. The case was therefore adjourned for hearing to 28 June 1965. On the adjourned date counsel for the defendants made the legal submission that where a plaintiff fails in establishing an infringement of copyright by the defendants he cannot maintain an action in conversion in respect of the same infringement. Where he succeeds, he can maintain a claim for conversion, but the court always has regard to the damages awarded in the successful suit. He stated that in any case the claim is statute-barred. He referred the court to Caxton Publishing Co. v. Sutherland Publishing Co.3 and Halsbury’s Laws of England (3rd ed.), Vol. 8, p. 449. I was also shown the decision of the Supreme Court in the case of C.F.A.O. v. Archibold (supra) which I perused carefully.

I am of the view that these submissions would have been very material issues if this action had been brought or could only be maintained under the provisions of the Copyright Act, 1911. I am satisfied that it is not brought under the said Act, but under the general law of tort. I have now therefore to consider whether a composer of music, who has not reduced his work into writing or written the solfa notation can or ought to be allowed to claim damages against a person who has without his permission recorded or in any other way reproduced the music. The problem is larger than I have posed; it extends to persons who compose stories and other works which need not necessarily be reduced into writing or some other permanent form. This problem is of great practical importance [p.83] of [1966] GLR 79 in a country such as Ghana, where the incidence of illiteracy, despite the strenuous and commendable efforts of the government to eradicate it, is still high. Ought the law not to afford protection to illiterate composers of songs and other cultural or original works solely on the ground that they are not written down, or ought the law to insist that all illiterate composers employ the services of literate ghost writers to reduce their composition into writing before they are legally protected? In other words ought the law to recognise ownership or any kind of property in original work even though unwritten ? A negative answer to the problems will mean that several of our illiterate composers of talent, unless of course they can undertake a crash programme in literacy, must always remain at the mercy of literate speculators or pirates, who may reap huge profits at their expense. I shall therefore proceed to examine whether the law in fact denies such protection. I think it is too late in the day to say that mere novelty is a bar to an action in tort. As Pratt C.J. said in Chapman v. Pickersgill4: “I wish never to hear this objection again… this action is for a tort: torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief.” I am not unmindful of the fact that the novelty of a claim may raise a presumption against its validity, and a court may remark as was done by Cresswell J. in Revis v. Smith,5 “It is enough to say that the world has gone on very well without such actions as these; and I doubt whether it would continue to do so if such things were allowed.” There is, however, undoubtedly power in the courts to recognise a novel claim if justice so requires. The history of the law of torts is replete with examples, e.g. the tort of deceit in Pasley v. Freeman,6 inducement of breach of contract in Lumley v. Gye,7 the rule in Rylands v. Fletcher,8 and recently the claim for damages for negligent mis-statement in the absence of contractual or fiduciary relationship in Hedley Byrne & Co., Ltd. v. Heller & Partners Ltd.9

As Denning L.J. (as he then was) said in Candler v. Crane, Christmas & Co.10:

“If you read the great cases of Ashby v. White ((1703) 2 Ld. Raym, 938), Pasley v. Freeman ((1789) 3 Term. Rep. 51) and Donoghue v. Stevenson ([1932] A.C. 562) you will find that in each of them the judges were divided in opinion. On the one side there were the timerous souls who were fearful of allowing [p.84] of [1966] GLR 79 a new cause of action. On the other side were the bold spirits who were ready to allow it if justice so required. It was fortunate for the common law that the progressive view prevailed.”

Here I am fortunate to be sitting alone, and there is no possibility here at least for a conflict of opinion. The position is clear: A. admittedly has composed songs with effort, intellect and industry. B. has recorded these songs without A.’s permission and sold the records and pocketed the proceeds. Ought A. to recover? Admittedly A. is literate, but supposing he had been illiterate and could not write or supposing he had been blind and could not compose in brail, or even that he had lost the use of both arms, ought the law to say that because he has not written the staff notation or any other claptrap, he ought to be unprotected and at the mercy of speculators’?

I am aware that where a musical composition or a story is not written there is the possibility or probability of several claimants to authorship, but I am of the view that that factor need not be an insurmountable obstacle to such a claim being recognised. It will all depend on profit; the burden of course will be on the plaintiff to satisfy the court by cogent and reliable evidence that he is the author of the works. Here happily the problem does not arise, because the defendants do not dispute that the plaintiff is the composer of the songs.

Before proceeding further, I shall at this stage advert to section 17 of the Interpretation Act, 1960.11 It provides in subsections (1) and (4) that:

“(1) The common law, as comprised in the laws of Ghana, consists, in addition to the rules of law generally known as the common law, of the rules generally known as the doctrines of equity and of rules of customary law included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application . . .

(4) In deciding upon the existence or content of a rule of the common law, as so defined, the Court may have regard to any exposition of that rule by a court exercising jurisdiction in any country.” Bennion in his Constitution Law of Ghana (1st ed.), p. 405 has this to say about these provisions: “It was considered inexpedient to refer expressly to English law in these provisions describing the unenacted laws of Ghana. Furthermore although common law and equity originated in [p.85] of [1966] GLR 79

England they have of course been received by the law of many other countries … It is this concept of common law and equity as a world-wide system of law that is now imported into the laws of Ghana. This is emphasized by subsection (4) of section 17 of the Interpretation Act, 1960 (C.A. 4) which enables the Courts to seek guidance on any doubtful point on the common law or equity from decisions of Courts in any country.”

The learned author goes on:

“Although no doubt the Courts in Ghana will continue to seek guidance from the principles of English law in which their judges and legal practitioners have been nurtured, they are now free to take their own view of the correctness of English decisions on doubtful points. Where, therefore, a court in Ghana considers that a wrong turning has been taken by the judges in England, … they are at liberty to interpret them differently.” Freed therefore from these restrictive shackles of English judicial precedent, I shall take the opportunity of breathing the more invigorating air of American jurisprudence.

In the United States the question is being raised with increasing persistence whether advantageous relations arising out of ideas as such are not deserving of protection, even if not embodied in new and useful things or expressed in copyrightable forms: see Holmes J. in White-Smith Music Publishing Co. v. Apolo Co.12 and the views of B. W. Logan in (1939) 4 M.L.R. 239.

In International News Service v. Associated Press13 due to modern publicity and problems of mass communication and industrial methods, the United States Supreme Court went as far as to restrain a press service from “pirating” news items from the bulletin boards or early editions of the papers of the plaintiff’s service: that is, from rapidly transmitting the news for reproduction to the defendant’s own client’s newspapers throughout the country. And yet there can scarcely be copyright in the news item of a daily paper as such. The majority said that while vis-a-vis the public there was no property in news after publication there was such as between the parties14:

“For to both of them alike, news matter, however little susceptible of ownership or dominion in the absolute sense … to be gathered at the cost of enterprise, organisation, skill, labour and money, and to be distributed and sold to those who will pay money for it . . . Regarding the news, therefore, as but the material out of which both parties are seeking to make profits

[p.86] of [1966] GLR 79 at the same time and in the same field, we hardly can fail to recognise that for this purpose and as between them, it must be regarded as quasi-property.”

I am not unmindful of the famous statement by Cheshire and Fifoot in their Law of Contract (3rd ed.), p. 517 that:

“The prefix ‘quasi’ is commonly used by lawyers when they wish to extenuate, if not to justify, a classification which, though convenient in practice or hallowed by tradition, is not supported by logic.” But as Holmes said in his Common Law, p. 1,

“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”

In Ghana as in many parts of Africa, the advent of industrialisation is economically extending the nature of property. The once overwhelming importance of landed property is gradually being eclipsed by the growth of new forms of wealth, not least is what is called in some circles “intellectual” property. With the advent of broadcasting, television and other mass media of communication, the person with an ability and skill to compose musical works has a valuable source of wealth. Is this to be restricted to only the literate among the population? I think not. I therefore hold that this action is maintainable, and I therefore fix 14 February 1966 for further hearing.

DECISION

Objection overruled.

Action to proceed.

E. D. K.