THE HIGH COURT
									1997 No. 365 Sp. Ct. 6

BETWEEN

MANDARIM RECORDS LIMITED
									PLAINTIFF
AND
MECHANICAL COPYRIGHT PROTECTION SOCIETY (IRELAND) LIMITED
									DEFENDANT

Judgment of Mr. Justice Barr delivered on the 5th day of October, 1998.

	THE FACTS

	The plaintiff is a limited liability company incorporated in the State and having its registered office in the city of Dublin.  It is in the business of compiling sound recordings and pressing records thereof for sale inside and outside Ireland.  The plaintiff is a member of the Irish Recorded Music Association, being the body which represents the legitimate recording industry in Ireland.  The defendant is also a limited liability company incorporated in the State and it represents the interests of the composers of musical works.  It is engaged in the business of licensing on behalf of its clients the mechanical reproduction of musical works by way of records.  It also acts as an agent on behalf of composers for the purpose of collecting licence fees or royalties from record manufacturers such as the plaintiff.
	Most records manufactured by the plaintiff contain compilations of musical works which have been previously recorded and marketed by others.  Such records have been marketed by the plaintiff with the consent of the relevant copyright owners.  It is not in dispute that in connection with the manufacturing and marketing of such records the plaintiff is ready and willing to pay a fair royalty to the defendant on behalf of the owners of the copyright in the particular musical works.  Save as hereinafter described, there is no dispute between the plaintiff and the defendant.  The issue which has arisen raises a net legal point i.e., whether or not certain compact discs (CD's) known as Power CD's constitute "records" for the purposes of the Copyright Act, 1963.  
	The technical nature of a Power CD is explained in affidavits sworn herein on behalf of the plaintiff by Mr. Kieran Mahon and Mr. Javier Manas Drueda and their evidence in that regard is not in dispute.  Power CD's have introduced a novel development in the recording industry which has added a new dimension by combining visual imagery and conventional reproductions of sound recordings made by selected artists or other musicians.  In appearance and dimensions Power CD's are identical to the ordinary type which comprise sound reproductions only.  Essentially, Power CD's contain not only sound recordings but also text, graphics and visual images which can be availed of when the CD is placed in a computer with a CD-ROM drive.  The essence of the product is explained by Mr. Drueda as follows:-

	"The Power CD can be played on an ordinary CD player and the sound recordings would be reproduced by that player in exactly the same way as an ordinary CD.  All that will be heard are the sounds produced by the CD.  However, when the CD is placed in a computer with a CD-ROM drive, images can be seen on the computer screen ('VDU') including text, graphics and visual images (such as photographs) and in some instances video images (i.e. moving images).  However, in no case are the visual images synchronised with any musical or literary works owned or controlled by the defendant.   They are an addition to the sound recording..........."

The Power CD's which are the subject-matter of these proceedings are specified in the schedule to the Special Summons herein.  All are intended primarily for distribution and sale in Spain.  The plaintiff duly notified the defendant of its intention to make the records in question and the defendant has been made aware since in or about October, 1996 that the plaintiff has been manufacturing Power CD's in reliance on the its statutory rights under section 13 of the Copyright Act, 1963 (the Act).  The defendant has refused to accept that the Power CD's in question are records for the purposes of the Act and in particular that they are within the ambit of section 13 thereof.  It is the plaintiff's contention that the Power CD's in dispute are records within the meaning of section 2(1) of the Act and that insofar as they comprise not merely performances of musical works but also include visual material, it does not deprive them of their status as records for the purposes of the Act having regard to the provisions of section 13.  The defendant does not accept the foregoing interpretation and contends that as Power CD's contain visual material in addition to sound recordings, they are not records within the meaning of the Act and do not come within the ambit of section 13 thereof.  The resolution of the issue raised in this action is also important in the context of proceedings brought against the plaintiff in Spain by the organisation which performs the functions of the defendant in this jurisdiction.  It is submitted on behalf of the plaintiff that if the Power CD's in issue are records for the purposes of the Act in Ireland then the plaintiff would be entitled to rely upon the provisions of section 13 to obtain what is colloquially known as a "statutory licence" in respect of the records which are in issue.  The plaintiff would then seek to rely upon the validity of such licences in Spain under European Union law. 

	THE LAW

	Statutory provisions relevant to the issue raised in this action are as follows:-
1	In section 2 of the Act "record" is defined as meaning "any disc, tape, perforated roll or other device in which sounds are embodied so as to be capable (with or without the aid of some other instrument) of being automatically reproduced therefrom, and references to a record of a work or other subject-matter are references to a record (as herein defined) by means of which it can be performed."
	Section 13, insofar as it is relevant, states that - 

	"(1)	the copyright in a musical work is not infringed by a person (in this section referred to as the manufacturer) who makes a record of the work, or of an adaptation thereof, in the State, if - ..... [four provisions are then specified which must be complied with and have been complied with in the instant case].......
	(4)	where a record comprises (with or without other material) a performance of a musical work, or of an adaptation of a musical work, in which words are sung, or are spoken incidentally to or in association with the music, and either no copyright subsists in the work, or if such copyright subsists, the conditions specified in sub-section (1) of this section are fulfilled in relation to that copyright, then if - ......... [three requirements are specified all of which have been met in the instant case].......  The making of the record shall not constitute an infringement of the copyright in the literary or dramatic work......."

There is no doubt that the wonders of contemporary computer technology and in particular the concept of adding a visual dimension to a disc of sound recordings would not have been contemplated by the drafter of the Act or by the legislators who brought it into law.  However, that is not per se a bar to the inclusion of new technology within an existing statutory framework.  On the contrary, it is patently desirable that, where possible, advances in technology, even those which could not have been envisaged by the framers of an Act, should be accommodated in statutory interpretation by the court, but only where that can be done without straining the words used beyond their ordinary meaning and having paid due regard to the structure and intent of the statute.
	Murphy J. in this Court dealt with a similar problem of contemporary technology in the context of relevant provisions in the Merchant Shipping Act, 1894 in Keane -v- An Bord Pleanala, [1997] 1, I.R. 184.  His judgment contains the following passage at p. 193:-

	"I have no difficulty in accepting the desirability and, in general, the necessity for giving to legislation an 'up-dating construction'.  Where terminology used in legislation is wide enough to capture a subsequent invention, there is no reason to exclude it from the ambit of the legislation but a distinction must be made between giving an up-dated construction to the general scheme of legislation and altering the meaning of particular words used therein."
The issue in Keane's case was whether a Loran-C radio navigation mast came within the meaning of "beacon" in the Act of 1894.  Barrington J. in course of his judgment in the Supreme Court on appeal from the High Court at p. 234 also dealt with statutory interpretation in the light of contemporary advances in technology which could not have been envisaged by the framers of the relevant legislation.  He concluded that -

	"Had the Act of 1894 simply entrusted to the Commissioners of Irish Lights the management of 'aids to navigation' I would be happy to conclude that the Loran-C system of navigation was an aid to navigation within the meaning of the Act of 1894, even though the system had not been invented when the 1894 Act was passed.  But the trouble is that the draftsman of the 1894 Act appears to have used terms which tie the Act to the technology of the times."

In short, it was held on appeal, (Hamilton C.J.; Blayney and Barrington J.J.; O'Flaherty and Denham J.J. dissenting) affirming Murphy J., that the meaning of the term "beacon" could not reasonably be extended to include a radio navigation mast.
	In the light of the foregoing principles of a statutory interpretation is a CD a record within the framework of the Act and in particular section 13 thereof which contains not only sound recordings but also visual images when played by a computer with a CD-ROM facility?  In my opinion there is nothing in the definition of "record" in section 2 or elsewhere in the Act which excludes the added visual dimension which is the distinguishing feature of a Power CD.  The adoption of a broad interpretation in this case does not distort the statutory definition of "record" or do violence to the wording thereof.  Furthermore, such an interpretation specifically accords with the wording of section 13(4).  "Where a record comprises (with or without other material)......."  The term "other material" is not defined in the Act.  It seems to me that it includes the visual aspect of a Power CD.  It follows, therefore, that the plaintiff is entitled to a declaration that the Power CD's specified in the schedule to the Special Summons constitute records within the meaning of the Act and in particular section 13 thereof.