R v Simon, Nigel Ian

Date

29 March 1999

Copyright Designs and Patents Act 1988, s. 198;
Trade Marks Act 1994, ss.10 and 11, s. 92.
Art. 177 referral to the ECJ Community Law Regulation

preliminary issues; consent; performance rights; criminal offences; copyright

Mr Wyeth

Hedley Saunders & Co.; CPS; London Area Secretariat

HHJ Bray

Unknown

Unreported

Preliminary hearing.

D pleaded that in order for P to make out an offence under s.198 of the Copyright, Designs and Patents Act 1988 P must prove that the owner of the rights and the performer had not consented to a recording to prove that a recording was "illicit" for the purposes of that section.

Rejected by Judge; testimony from rights owner sufficient.
D pleaded that P must prove lack of consent for each of the separate prohibited acts under s.198 (e.g. make, import, possess). Rejected by Judge: for D to prove consent in relation to those acts.
Admissibility of CD inlay, albeit hearsay, to prove that CDs were recordings of a live performance. Allowed by Judge.
D submitted that P had to show civil infringement under ss.10 and 11 in order to make out an offence under s.92 TMA 1994. The basis for this argument was the use of the term "infringement" in the s.92(5) defence. Rejected by judge as basically re-writing the section. NB: Overruled by R v. Johnstone.
D argued that s.92 TMA was ultra vires the EC Directive. Rejected by judge, who also refused to make a Art.177 referral to the ECJ.
D submitted that s.92 disproportionate. Rejected.
Sufficient counts must be included on the indictment to reflect the level of criminality suggested.

Reviewed 30 November 2008