The plaintiffs as representatives sought to restrain Amstrad selling equipment with two cassette decks without taking precautions which would reasonably ensure that their copyrights would not be infringed by its users.
Held: Amstrad could only be liable as a joint tortfeasor. If they were not a joint tortfeasor they would be under no tortious liability. A defendant who procures a breach of copyright is liable jointly and severally with the infringer for the damages suffered by the plaintiff as a result of the infringement. The defendant is a joint infringer if he intends and procures and shares a common design that infringement shall take place. A defendant may procure an infringement by inducement, incitement or persuasion. But in the present case Amstrad do not procure infringement by offering for sale a machine which may be used for lawful or unlawful copying and they do not procure infringement by advertising the attractions of their machine to any purchaser who may decide to copy unlawfully. Amstrad are not concerned to procure and cannot procure unlawful copying. The purchaser will not make unlawful copies because he has been induced or incited or persuaded to do so by Amstrad. The purchaser will make unlawful copies for his own use because he chooses to do so. Amstrad’s advertisement may persuade the purchaser to buy an Amstrad machine but will not influence the purchaser’s later decision to infringe copyright. . . . Generally speaking, inducement, incitement or persuasion to infringe must be by a defendant to an individual infringer and must identifiably procure a particular infringement in order to make the defendant liable as a joint infringer.
‘My Lords, joint infringers are two or more persons who act in concert with one another pursuant to a common design in the infringement. In the present case there was no common design. Amstrad sold a machine and the purchaser or the operator of the machine decided the purpose for which the machine should from time to time be used. The machine was capable of being used for lawful or unlawful purposes.’ and ‘My Lords, I accept that a defendant who procures a breach of copyright is liable jointly and severally with the infringer for the damages suffered by the plaintiff as a result of the infringement. The defendant is a joint infringer; he intends and procures and shares a common design that infringement shall take place. A defendant may procure an infringement by inducement, incitement or persuasion. But in the present case Amstrad do not procure infringement by offering for sale a machine which may be used for lawful or unlawful copying . . The purchaser will not make unlawful copies because he has been induced or incited or persuaded to do so by Amstrad. The purchaser will make unlawful copies because he chooses to do so.’
Lord Templeman: ‘My Lords, I accept that a defendant who procures a breach of copyright is liable jointly and severally with the infringer for the damages suffered by the plaintiff as a result of the infringement. The defendant is a joint infringer; he intends and procures and shares a common design that infringement shall take place. A defendant may procure an infringement by inducement, incitement or persuasion. But in the present case Amstrad do not procure infringement by offering for sale a machine which may be used for lawful or unlawful copying. . . . The purchaser will not make unlawful copies because he has been induced or incited or persuaded to do so by Amstrad. The purchaser will make unlawful copies because he chooses to do so.’
Lord Keith of Kinkel, Lord Templeman, Lord Griffiths, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle
[1988] AC 1013, [1988] 2 WLR 1191, [1988] UKHL 15, [1988] 2 FTLR 168, [1988] RPC 567, [1988] 2 All ER 484
Bailii
Copyright Act 1956, Copyright Act 1956, Performers’ Protection Act 1972
England and Wales
Citing:
Cited – Lumley v Gye 1853
Inducing breach of contract is a Tort
An opera singer (Miss Wagner) and the defendant theatre owner were joint wrongdoers. They had a common design that the opera singer should break her contract with the plaintiff theatre owner, refuse to sing in the plaintiff’s theatre and instead . .
Appeal from – CBS Songs Ltd v Amstrad Consumer Electronics Plc CA 1987
Persons other than the Attorney General do not have standing to enforce, through a civil court, the observance of the criminal law as such. However, Sir Denys Buckley considered that such a claim might be maintained as a representative action . .
Cited – Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd 1979
The defendants sold diamond grit allegedly for the sole purpose of making grinding tools in which it was to be embedded in a resin bond as part of a grinding material patented by the plaintiffs.
Held: The defendants could not be infringers . .
At First Instance – Amstrad Consumer Electronics Plc v British Phonographic Industry Limited ChD 17-Jun-1985
BPI as representative of copyright holders sought damages from the applicant saying that their two-deck cassette tape recording machines were tools for copyright infringement by deing designed to allow copying. The defendants now sought a . .
Cited – Monckton v Pathe Freres Pathephone Ltd CA 1914
A performance of the musical work by the use of a record was found to be an infringing use and the record was sold for that purpose. Buckley LJ said: ‘The seller of a record authorises, I conceive, the use of the record, and such use will be a . .
Cited – Evans v E Hulton and Co Ltd ChD 1924
Passing on memories for use in a ghosted autobiography is not sufficient for a claim of joint authorship. Tomlin J considered whether a publication had been authorised by the copyright owner and said: ‘where a man sold the rights in relation to a . .
Cited – Dunlop Pneumatic Tyre Co Ltd v David Moseley and Sons Ltd CA 1904
Swinfen Eady J’s decision was upheld. . .
Too wide – Falcon v Famous Players Film Co CA 1926
The defendants hired a film to a cinema. The film was based on the plaintiff’s play.
Held: The defendants infringed the plaintiff’s exclusive right conferred by the 1911 Act to authorise a performance of the play. The hirer sold the use which . .
Cited – Townsend v Haworth CA 1875
The defendant sold chemicals to be used by the purchaser in infringement of patent and agreed to indemnify the purchaser if the patent should prove to be valid.
Held: Only the person who actually manufactures or sells infringing goods is the . .
Cited – Innes v Short and Beal 1898
The defendant Short sold powdered zinc and gave instructions to a purchaser to enable the purchaser to infringe a process patent. The plaintiff patent holder sought damages saying that he was a joint tortfeasor. Held; Bingham J said: ‘There is no . .
Cited – Dunlop Pneumatic Tyre Co Ltd v David Moseley and Sons Ltd ChD 1903
The defendant sold tyre covers which were an essential feature of a combination patent for tyres and rims. The tyre covers were adapted for use in the manner described in the patent, but not necessarily solely for use in that manner. The plaintiffs . .
Cited – The Koursk CA 1924
The navigators of two ships had committed two separate torts or one tort in which they were both tortfeasors.
Held: Three situations were identified where A might be jointly liable with B for B’s tortious act. Where A was master and B servant; . .
Cited – Rotocrop International Ltd v Gembourne Ltd 1982
When sued for patent infringement, the defendants challenged the validity of the patent for obviousness.
Held: There was novelty in the patent for a compost bin with removable panels and a rival manufacturer who made and sold infringing bins . .
Cited – Invicta Plastics Limited v Clare QBD 1976
Those advertising and selling devices which were designed to detect the presence of police radar speed devices commit the offence of incitement under section 1(1) of the 1949 Act which required a licence for the use of such apparatus. . .
Cited – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
Cited – Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd HL 18-Oct-1983
Architects proposed a system of flexible drains for a site, but the contractors persuaded them to accept rigid drains which once laid proved inadequate at considerable cost. The local authority had permitted the departure from the plans.
Held: . .
Cited – Yuen Kun-Yeu v Attorney-General of Hong Kong PC 1987
(Hong Kong) The claimant deposited money with a licensed deposit taker, regulated by the Commissioner. He lost his money when the deposit taker went into insolvent liquidation. He said the regulator was responsible when it should have known of the . .
Cited – Rowling v Takaro Properties Ltd PC 30-Nov-1987
(New Zealand) The minister had been called upon to consent to the issue of shares to a foreign investor. The plaintiff said that the minister’s negligent refusal of consent had led to the collapse of the project and financial losses.
Held: On . .
Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
Cited by:
Cited – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL 19-Feb-1999
The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
Cited – Unilever Plc v Gillette (UK) Limited CA 1989
Unilever claimed infringement of its patent. The court was asked whether there was a good arguable case against the United States parent company of the existing defendant sufficient to justify the parent company to be joined as a defendant and to . .
Cited – MCA Records Inc and Another v Charly Records Ltd and others (No 5) CA 5-Oct-2001
The court discussed the personal liability of a director for torts committed by his company: ‘i) a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Cited – PLG Research Ltd and Another v Ardon International Ltd and Others ChD 25-Nov-1994
A patent infingement claim was met by the assertion that the material covered had been disclosed before the patent had been obtained. The court was asked as to the test of whether the information in a claim had been disclosed. Aldous J said: ‘Mr. . .
Cited – Bunt v Tilley and others QBD 10-Mar-2006
bunt_tilleyQBD2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Cited – Twentieth Century Fox Film Corporation and Another v Newzbin Ltd ChD 29-Mar-2010
The defendant operated a web-site providing a search facility of the Usenet news system which allowed its users to locate copies of films online for downloading. The claimant said this was an infringement of its copyrights.
Held: The defendant . .
Cited – Fish and Fish Ltd v Sea Shepherd UK and Another AdCt 25-Jun-2012
The claimant company was engaged in tuna fish culture off shore to Malta. The defendant ship was owned by a charity which campaigned against breaches of animal preservation conventions. Fish were being transporting live blue fin tuna in towed . .
Cited – Fish and Fish Ltd v Sea Shepherd Uk and Others CA 16-May-2013
The claimant company sought damages after their transport of live tuna was attacked by a protest group. They now appealed against a decision that the company owning the attacking ship was not liable as a joint tortfeasor.
Held: The appeal was . .
Cited – Sea Shepherd UK v Fish and Fish Ltd SC 4-Mar-2015
Accessory Liability in Tort
The court considered the concept of accessory liability in tort. Activists had caused damage to vessels of the respondent which was transporting live tuna in cages, and had caused considerable damage. The appellant company owned the ship from which . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Intellectual Property, Negligence
Leading Case
Updated: 02 November 2021; Ref: scu.183580
