The Gazette 1976

J UNE /J U LY 1976

GAZETTE

defendants. The full benefit of the 1963 Act in relation to countries specified in S. 43 depends on the making of an Order under that Sec- tion which has not been made. Accordingly the appeal is allowed, and the damages payable by the defendants, upon which Butler J. suggested that the parties should reach agreement, are disallowed. Performing Rights Society Ltd. v. Marlin Communal Aerials Ltd. — Sup- reme Court (O'Higgins, C.J., Griffin and Kenny JJ.) — Separate judgments by the Chief Justice and Kenny J. — unre- ported — 17 December 1975. A residuary personal estate of a testator is only valid if it does not offend the Rule against Perpetuities, and that residuary estate must sub- sequently be distributed as personal estate amongst the next-of-kin. The facts of this complicated case were summarised in the March 1973 Gazette at page 60. The net ques- tion is whether, on the true con- struction of the will of the testator, the defendant Walter Goulding, eldest son of Basil, is entitled abso- lutely to the residuary personal estate of the testator, or should this residuary estate be distributed amongst the next of kin. Griffin J. in the majority judg- ment recalled that by his will, the testator, Sir William Goulding, gave the residue of his property "of every nature and kind" to his trustees upon trust to pay an annuity to his wife during her life. Sir William died in July 1925 and his widow died in 1934. After her death, the testator provided for the creation and disposition of a special fund of £20,000 called the Baronetcy Fund, with the intention of ensuring that the person who had the title, had sufficient funds to keep up the dig- nity of that title. His eldest son, Lingard, died leaving children in 1935, and the residuary estate then passed to his grandson, Basil. There then followed a complicated resi- duary clause in the will by which the personal residue was to be left in tail male in the first instance to Basil's eldest son, Walter, who was living within the perpetuity period, having been born in 1940, and to Walter's sons, grandsons, etc. As it was not certain whether Walter would legally marry at any time, i.e. whether within 21 years of Sir William's death or afterwards, it was inevitable that this personal bequest in tail would fail, as offending the Rule against Perpetuities. Undoubt-

right to dictate to the defendants as to the selection of their reper- toire. The Copyright Act, 1963, extended copyright to radio and television broadcasting, and gives protection to the rights of defined qualified persons. The aim of the Berne Convention is to provide that copyright enjoyed in one subscribing state shall be protected within the jurisdiction of each other subscrib- ing state. S. 2 defines transmission as including the distribution of broadcast programmes. The defen- dants submit they do not transmit programmes, but pick up the free air transmission of programmes, in the same way as any private indivi- dual in the multi-channel pro- grammes, and receive, as licensed receivers, what is already broadcast. They merely provide amplification. T his contention is rejected, and in this respect Butler J. is affirmed. But one must also consider whether Part VIII of the First Schedule to the Copyright Act, 1963, has the effect that that Act applies to a transmission by tele- vision outside the country, although no order of any kind applying any of the provisions of the Act of 1963 to any country has been made under S. 43 of the Act. S. 43 authorises the Government to apply any of the provisions of the Copyright Act, 1963, to any country in the world which is not a party to the Berne Convention if the Government is satisfied that provision has been or will be made under the laws of that country giving adequate protection to Irish owners of copyright. Para- graph 35 (2) of the First Schedule in Part VIII states that if, at any time after the 1963 Act comes into force, a provision referring to quali- fied persons has not been applied in the case of a country under S. 43, then as regards any preceding time before the Act, the reference is to be construed as if the provision to qualified persons did apply to that country. This clearly relates to a period of time after the 1963 Act has come into force; an order under S. 43 can then be made, so that a period before the making of the order can be provided for, and the Order itself will provide for a period after its making. The plaintiffs in effect rely on the Copyright (Foreign Countries) Order, 1959, which clearly does not give any protection under the 1963 Act, but is based on the protection given by S. 154 (2) of the 1927 Act. This provision only gives a right to make a record or cinematograph film of copyright material but does not extend to the kind of transmission provided by the

confirm the Compulsory Purchase Order, because the evidence showed that the lands were not being solely acquired for the purpose of enabling Dublin Corporation to carry out their statutory housing functions. But the Minister confirmed Dublin Corporation's original proposal, by which part of the lands were to be handed over to Dublin County Council for housing purposes. The Minister may act in such cases, if he is of opinion that there is a reason- able expectation that the land will be required at some time in the future by one local authority for its housing purpose. Under the Hous- ing Act, 1966, land may be compul- sorily acquired and allowed to remain idle until its use for housing becomes necessary. Planning permission is not neces- sary in this case, as it would other- wise hinder development. However, under the Housing Act, 1966, com- pulsory acquisition is only permitted in respect of the local authority who applies for it for its own housing purposes. This Act does not permit an extension to allow another differ- ent local authority to apply acquisi- tion for the purpose of attaining their own statutory housing func- tions. The Compulsory Purchase Order was therefore wrongly con- firmed by the Minister, and should be quashed. The appeal from Kenny J.'s deci- sion is accordingly unanimously dis- missed. In Re Blanchardstown and Corduff Area Compulsory Purchase Order 1969 — Moran v. Dublin Corporation — Sup- reme Court (Walsh, Henchy and Parke JJ.) per Henchy J. — unreported — 13 November 1975. Plaintiffs are concerned with the protection of rights of authors and publishers in relation to musical and other works. The plaintiffs grant licences for reward for the perfor- mances of works, and distribute the proceeds amongst authors and pub- lishers. The plaintiffs claim that the defendants performed eight musical items in May 1973 which it is alleged constitute breaches of copy- right. The defendants provide multi-channel television, and hold licences from the Department of Posts and Telegraphs; all the authors named were aliens, belong- ing to one of the signatory countries of the Berne Convention. Plaintiffs have contended that they had a Damages for alleged breach of copy- right disallowed.

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