Public Prosecutor v Teoh Ai Nee and Another

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 04 December 1993
• Neutral Citation: [1993] SGHC 289
• Docket Number: Magistrate's Appeal No 126 of 1993
• Date: 04 December 1993
• Year: 1993
• Published date: 19 September 2003
• Plaintiff Counsel: Richard Tan, Tan Lay Sang and Boo Yee Suan (Lee & Lee)
• Citation: [1993] SGHC 289
• Defendant Counsel: Lam Wai Seng (Peter Chua Sobaran & Pnrs),Wong Siew Hong (Teh Yip & Wong)
• Court: High Court (Singapore)
• Subject Matter: s 137 Copyright Act (Cap 63, 1988 Ed),s 7 Copyright Act (Cap 63, 1988 Ed),Copyright,Words and Phrases,Consent of 'owner of copyright' under s 7 of Copyright Act (Cap 63, 1988 Ed),ss 7, 25(1) & (2) Copyright Act (Cap 63, 1988 Ed),What constitutes an infringing copy,Effect of original publication in England in 1958 during the 'interregnum period',Copyright protection,On whom the onus of proof lies,Infringement,Effect of affidavit pursuant to s 137 Copyright Act (Cap 63, 1988 Ed),Whether it refers to the owner at the place of manufacture or the owner in Singapore,Parallel imports,'Owner of copyright'

This appeal was brought by the public prosecutor against the decision of district judge Jasvender Kaur. The respondents, proprietors of the music store at Paradiz Centre known as Valentine Music Centre, on 3 February 1993, originally faced three charges in the district court under s 136(1)(b) of the Copyright Act (Cap 63, 1988 Ed) (`the 1988 Act`), of knowingly exposing for sale infringing copies of the sound recordings entitled `And I love Her`, `Let it be` and `Eleanor Rigby` by `The Beatles`, and two charges under s 136(2)(a) of the 1988 Act of knowingly having in their possession for the purposes of sale infringing copies of the sound recordings entitled `Move it` by Cliff Richard and `Anna (go to him)` by `The Beatles`.

At the conclusion of the prosecution`s evidence in the court below, defence counsel submitted that there was no case to answer, and the district judge acquitted the respondents without calling for their defence. The public prosecutor appealed to this court, and having heard lengthy arguments from both sides, I decided to allow the appeal. I accordingly ordered that the case be sent back to the district judge to call on the respondents to enter upon their defence. I now set out my reasons.

The district court hearing

It is, at the outset, essential to review the evidence tendered by the prosecution in the court below which was considered insufficient to meet the charges against the respondents by the learned district judge; this consisted of the testimony of four witnesses and an affidavit tendered pursuant to the provisions of s 137(1) of the 1988 Act.

Section 137(1) provides that an affidavit made before a notary public by or on behalf of the owner of the copyright, stating that, at the material time, copyright in Singapore subsisted in the specified work, that the person named therein was the owner of the copyright, and that copies of the work annexed to the affidavit were true copies, would be prima facie proof of those matters as stated unless the contrary was proved. The affidavit so adduced by the prosecution complied with the requirements of s 137(1) and affirmed that, at the material time, copyright in the five material sound recordings existed in Singapore, and the owner of the copyright in all five was EMI Records Ltd. Defence counsel did not object to the admission of the s 137(1) affidavit, nor did he express a desire to cross-examine the maker of the affidavit, as provided for in s 137(2) of the 1988 Act.

The further evidence was to the effect that the ten compact discs which were the subject-matter of the five charges against the respondents had been seized pursuant to a search warrant from the showroom and storeroom of the respondents` music store. Seven of these discs were marked `Made in EEC` and three were marked `Made in Japan`; five bore the logo `World Star Collection`, two the logo, `BRS` and the remaining three, the logo `Star Pack`. The testimony of two senior officials of EMI Singapore was that while the recordings in the seized compact discs were exact reproductions of the relevant original sound recordings, the ten seized discs did not bear the EMI logo and the catalogue numbers on those discs did not belong to EMI. The seized discs were expressed to have been manufactured (in the EEC and Japan) without the consent or licence of EMI Records Ltd and, therefore, constituted infringing copies under the second limb of s 7 of the 1988 Act.

Section 7 of the 1988 Act generally states that an:

`infringing copy` ...

(b) in relation to a sound recording, means ...

... an article the making of which constituted an infringement of the copyright in the ... recording ... or, in the case of an article imported without the licence of the owner of the copyright, the making of which was carried out without the consent of the owner of the copyright; [Emphasis added.]

The central controversy which necessitated that the case be brought before me on appeal arose at the close of the prosecution case as to the second part of the second limb of the section, which refers to the making of the article without the consent of the owner of the copyright (of the article); the section, however, is silent on whether that owner so referred to is the owner of the copyright of the article in Singapore, or whether it means the owner of the copyright of the article in the country in which the article was manufactured.

The prosecution at the close of their case submitted that this second part must be interpreted to refer to the Singapore copyright owner. They submitted that since they had adduced evidence that the Singapore copyright holder, EMI, had not consented to the making of the seized compact discs, they had put forward a prima facie case that the discs were `infringing copies` under s 7.

The defence, on the other hand, argued that the second part referred to the copyright owner in the place of manufacture, ie Japan and the EEC, and that since the prosecution had failed to adduce any evidence regarding, first, the existence of protection of copyright (either EMI`s, or any other licensed person) in those five sound recordings in both Japan and the EEC, and secondly, the lack of authorization to make the discs in Japan and the EEC, ie that the discs were, vis-Ã -vis the relevant Japanese or EEC copyright laws, pirated in Japan and the EEC, the prosecution had failed to make out a prima facie case that the discs were `infringing copies`. This argument was accepted by the district judge in the court below.

The defence raised, in the alternative, an objection to the subsistence in Singapore of EMI`s copyright over the sound recording by Cliff Richard entitled `Move it`, which was agreed to have been first published in 1958. They cited the local case of Butterworth & Co (Publishers) Ltd & Ors v Ng Sui Nam , as affirmed by the Court of Appeal, as authority for the proposition that works first published in the United Kingdom during what was termed the interregnum period between 1 June 1957 and 26 January 1959 did not enjoy copyright protection under the Copyright Act 1911 (`the 1911 Act`) due to the repeal of that Act in the United Kingdom, and thus did not enjoy copyright protection in Singapore under the 1988 Act. This argument was also accepted by the district judge, who held, for the sake of completeness, that, by virtue of this reasoning, the prosecution could not rely on the assertions in their s 137(1) affidavit that copyright in `Move it` subsisted in Singapore at the material time and had failed to make out a prima facie case as regards this charge.

The issues on appeal

The two issues on appeal are, therefore, questions of law: what constitutes an `infringing copy` under the 1988 Act, and whether the copyright in the Cliff Richard recording entitled `Move it` subsisted in Singapore at the material time and was, therefore, entitled to protection under the 1988 Act. I deal with these in turn.

(1) What constitutes an `infringing copy` under the second limb of s 7?

The two limbs to the definition in s 7 are clearly separate. The first refers to an infringing article made in Singapore, and the second refers to an infringing article made overseas which was then imported into Singapore; this distinction has been clearly established by the decision of Chan Sek Keong J, as he then was, in the case of Television Broadcasts Ltd & Ors v Golden Line Video & Marketing Ltd . The definition in the first limb is clear and unambiguous; it is the definition under the second limb which concerns us in the instant case as to whether it refers to the consent of the owner of the copyright of the article in the place of importation Singapore, or that of the owner of the copyright of the article in the country in which the article was manufactured.

The learned district judge in the court below accepted the defence`s contention that the owner of the copyright referred to in the second limb of s 7 should be read to mean the owner of the copyright in the country in which the article was manufactured. Her reasons for doing so, as set out in her grounds of decision, were rehearsed by the respondents before me at the appellate hearing.

She firstly derived...