Law Report: Copyright crime not just for pirates: Thames & Hudson Ltd v Design and Artists Copyright Society Ltd and others - Chancery Division (Mr Justice Evans-Lombe), 6 July 1994

It was not only 'pirates' who could be prosecuted for selling or distributing artistic material in breach of copyright, or for 'conniving' as a director in the commission of such offences by a company: under sections 107 and 110 of the Copyright, Designs and Patents Act 1988 any commercial organisation which used artists' work in breach of copyright could be prosecuted, as could its directors.

Mr Justice Evans-Lombe dismissed a motion in which the plaintiff, Thames & Hudson Ltd, sought an order that the first defendant, Design and Artists Copyright Society Ltd, be restrained from further pursuing criminal proceedings against the plaintiff and its directors at Bow Street Magistrates Court.

That motion was issued in an action in which the plaintiff, a well-known publisher of art books, sought declarations that two of its publications did not infringe copyright. One was a book called Beckmann by Stephen Lackner, which contained 98 illustrations of work by the German painter Max Beckmann, now dead, the copyright in whose work was owned by the second defendant, Christiane Mayen Wurdig Beckmann. The other book was entitled British Art Since 1900 and contained a illustrations the copyright in which was owned by the third defendant, Michael Craig-Martin.

After negotiations with the plaintiff over fees due for unlicensed reproductions in 46 of its books had petered out, the first defendant issued two summonses under section 107 on the plaintiff and each of its directors, alleging breach of copyright in respect of one of Max Beckmann's pictures.

Section 107 of the 1988 Act provides: '(1) A person commits an offence who, without the licence of the copyright owner . . . (d) in the course of a business (i) sells or lets for hire or . . . (iv) distributes . . . an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.'

By section 110: '(1) Where an offence under section 107 committed by a body corporate is proved to have been committed with the consent or connivance of a director . . . he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.'

The plaintiff began these Chancery proceedings on 17 June and applied to stay the proceedings in the magistrates court on the ground that they were vexatious and an abuse of process.

David Kitchin QC (Clifford Chance) for the plaintiff; Kevin Garnett QC and Gwilym Harbottle (Stephens Innocent) for the first defendant.

MR JUSTICE EVANS-LOMBE said the plaintiff contended, inter alia, that the launching of criminal proceedings in such circumstances was without precedent, and that sections 107 and 110 were designed and had hitherto only been used against pirate publications, by persons with no commercial relationship with the copyright owner. They were not intended for use in a commercial dispute and the magistrates court was not suited to the determination of the complicated commercial issues arising in thise case.

His Lordship was unable to find, on the evidence, that the criminal proceedings launched by the summonses were, when they were launched, vexatious; and it did not seem that they became so when the Chancery Division proceedings were brought.

Parliament had elected to provide that breach of copyright could in certain circumstances constitute an offence and that where such an offence was committed by a body corporate, the directors who connived at such commission were themselves guilty of an offence. No qualification appeared in the statute limiting the types of offender capable of committing the offence to 'pirates'.

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