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IV. INFRINGEMENT AND ENFORCEMENT
Please Note: All our music is Free for Public Performance. ... See our
guarantees below, show them to your patrons, so that they may rest
assured that none of our publications will bring them any trouble over
“performing fees.” We make One price cover both the music and the
performing rights thereof.
The defendant broadcaster hired a band to perform, with a view to
broadcasting the live performance. The band performed music played from
sheets which the band had purchased from the plaintiff.
The plaintiff sued the defendant broadcaster for “authorizing” a public
performance without the plaintiff’s consent. The defendant claimed the plaintiff’s
had consented to the performance by the statements in its pamphlets. (At the
time, the relevant legislation contained no separate broadcasting right.) The
Court agreed with the defendant and dismissed the action.
Mellor v. Australian Broadcasting Commission [1940] 2 All E.R. 20
(Australia: Judicial Committee of the Privy Council)
LORD MAUGHAM for the Court:
The trial judge [held] that the language used in the pamphlets was a consent to the public
performance of the works by the respondents. Their Lordships have arrived at a similar
conclusion. ... Taken as a whole, the [statements in the pamphlet] seem ... to guarantee complete
freedom from trouble as to copyrights to bands who, having bought the music published by the
appellants, play the musical works in public. As the judge remarked, the appellants “must have
known that band performances were frequently broadcast.” If they desired to exclude such
broadcasting – included as it is in the statutory “performing right” – it was for them to exclude it.
...[T]he licence or consent given in the pamphlets included the broadcasting by bands, with any
necessary consequences of such broadcasting, such as the use of receivers by persons entitled to
use them. It follows that the respondents were entitled to engage bands to do these permitted
things, and have not committed a breach of the appellants’ performing rights by “authorising”
the bands to do them.
EXAMPLE 2: Implied consent
The plaintiff engineer agreed to design the Ottawa Civic Centre for a flat fee and
produced the necessary plans. The cost of construction was thought to be too
high, but the plaintiff refused, in breach of contract, to change his plans. The
defendant contractor, Dominion Bridge, therefore made changes to reduce
costs and made additional copies of the plaintiff’s plans, which incorporated the
changes. The plaintiff sued the defendant for copyright infringement, claiming:
(1) The defendant had no licence to copy his plans at all; alternatively,
(2) Even if the defendant was licensed to copy, the licence did not extend
to the changes made, and so the defendant infringed by stepping
outside the scope of any implied licence.
