Novello & Company Ltd v Keith Prowse Music Publishing Company Ltd

Factual and Procedural Background

This case concerns the ownership of the reversionary interest in copyright of musical works composed before 1st June 1957. The Plaintiff claims title based on an assignment dated 31st October 2000 by the trustees of the will of a deceased composer, who died in 1977. The Defendant relies on a 1973 assignment executed by the composer during his lifetime, which purported to assign the whole copyright including the reversionary interest. Earlier assignments from the 1940s had transferred copyright initially to a company ("Company A"), which then assigned rights to the Defendant. The central dispute is whether the 1973 assignment was effective to transfer the reversionary interest, given the transitional provisions of the Copyright Act 1956 ("the 1956 Act") and earlier legislation.

Legal Issues Presented

1. Whether a living author during the currency of the 1956 Act could assign the reversionary interest in copyright expectant on the termination of 25 years from the author's death.
2. Whether the transitional provisions of the 1956 Act preserved the prohibition on inter vivos assignment of the reversionary interest found in the 1911 Act for assignments made after 1st June 1957 but relating to existing works.
3. The proper construction of the 1973 assignment and whether it conveyed the reversionary interest to the Defendant.

Arguments of the Parties

Appellant's Arguments

• The transitional provisions of the 1956 Act applied the proviso to section 5(2) of the 1911 Act to the 1973 assignment, rendering it ineffective to transfer the reversionary interest.
• Alternatively, the 1973 assignment was no more than a confirmation of earlier assignments from the 1940s and did not include the reversionary interest, as it was silent on the term and did not expressly mention the reversionary interest.

Appellee's Arguments

• The 1956 Act repealed the proviso to section 5(2) of the 1911 Act and conferred an unrestricted right of assignment, including of the reversionary interest, on living authors.
• The transitional provisions of the 1956 Act preserved the effect of pre-1 June 1957 assignments but did not restrict assignments made after that date, including the 1973 assignment.
• The 1973 assignment expressly referred to operating under the 1956 Act and conveyed the whole of the copyright, including the reversionary interest.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework governing copyright assignments, focusing on the transition from the 1911 Act to the 1956 Act and subsequently the 1988 Act. The 1911 Act prohibited inter vivos assignments of the reversionary interest, vesting it instead in the author's personal representatives. The 1956 Act repealed this prohibition and introduced an unrestricted right of assignment under section 36, but included transitional provisions (Schedule 7, paragraph 28) preserving the 1911 Act's effects on pre-1 June 1957 assignments.

The court analyzed paragraph 28(3) of Schedule 7 to the 1956 Act, which preserved the proviso to section 5(2) of the 1911 Act for assignments made before 1 June 1957. It found no clear statutory language extending this restriction to assignments made after that date. The court emphasized that paragraph 28(3) applies only to pre-commencement assignments and does not limit the unrestricted assignment rights granted by section 36 of the 1956 Act to living authors.

The court rejected the Plaintiff's argument that the proviso was intended to have prospective effect covering assignments between 1957 and 1989, reasoning that such an interpretation improperly imports the proviso into the transitional provisions beyond their clear wording.

Regarding the construction of the 1973 assignment, the court found that the language, including the reference to the 1956 Act and the assignment of "the whole of the copyright," indicated an intention to include the reversionary interest. The assignment was treated as a commercial document given its ordinary meaning, not merely a confirmation of earlier assignments.

The court noted that this interpretation aligns with recommendations of the Gregory Committee, which influenced the 1956 Act and advocated removal of the proviso to section 5(2) for new assignments.

Holding and Implications

The court DISMISSED the Plaintiff's claim, holding that the 1973 assignment was effective to transfer the reversionary interest in copyright to the Defendant. The court indicated it would, if required, make a declaration to that effect. The decision clarifies that living authors during the currency of the 1956 Act had the capacity to assign the reversionary interest in existing works, and that the transitional provisions did not preserve the 1911 Act's prohibition on such assignments for assignments made after 1 June 1957.

This ruling resolves a previously unsettled point of statutory construction but does not establish new precedent beyond the parties involved. The court reserved costs and other consequential matters for further hearing if necessary.