The Gazette 1976

GAZETTE

UNE

LY 1976

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.

Damages for alleged breach of copy-

right disallowed.

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

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

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-