Copyright
Case Note: Pearce v Ove Arup Partnership
Jane Lambert
Aug 1997
Last updated 29
March 2006
This case first
appeared on the Lancaster Buildings website
For well over a century it has been settled that an English court will not entertain an action for trespass to land abroad (see British South Africa Co. v Companhia de Mocambique [1893] AC 602). Shortly afterwards the High Court of Australia extended this rule to patents in Potter v Broken Hill Pty Co. 3 CLR 479. More recently English courts have refused to entertain actions concerning infringement of foreign copyrights on the ground that the alleged wrongdoing would not be actionable in England (see Def Lepp Music v Stuart Brown [1986] RPC 273 and Tyburn Productions Ltd. v Conan Doyle [1991] Ch 75). This country is now party to the Brussels Convention whcih has been reinforced by Council Regulation (EC) No 44/200. The rule that wrongdoing abroad must be actionable in both England and the place of the alleged mischief has been abolished by s.10 of the Private International Law (Miscellaneous Provisions) Act 1995. The effect of these changes was considered by Lloyd J in Pearce v Ove Arup Ltd. [1997] 2 WLR 779 and later by the Court of Appeal in [1999] EWCA Civ 625.
The Facts
An architectural student, who had made some drawings of a town hall in
1986, complained that an English civil engineering company together with
Dutch architects and builders and the Dutch local authority had
infringed his rights under the Dutch copyright statute by erecting the
Kunsthal in Rotterdam. The judge struck out the action on the grounds
that there was insufficient similarity between the building and the
plaintiff's drawings, but held that he was bound to entertain the action
by arts 2 and 6 (1) of the Convention. They provide respectively that:
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subject to the provisions of the Convention, persons domiciled in a Convention State shall, whatever their nationality, be sued in the courts of that state (art 2), and |
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a person domiciled in a Convention State who is one of several defendants may also be sued in the place where any one of them is domiciled (art 6.1). |
Judgment at First
Instance
Mr Justice Lloyd observed at page 789 that
"an English court will not be able to refuse to adjudicate on an action, if brought here against an English domiciled defendant, based on the infringement of the French law of privacy, or an artist's droit de suite, or some other legal right under the law of another contracting state to which English law has no equivalent."
It follows that Mocambique and any other rule of law that precludes an English court from hearing proceedings between persons domiciled in parties to the Convention is overridden by art 2.
Although he did not have to decide the point, the judge speculated whether those rules had been abolished as between parties domiciled elsewhere. He concluded that
"the use of the direct approach, prescribing the circumstances in which the national courts are to accept jurisdiction, leading to the mandatory terms of art 2 and the absence of any express qualification as regards cases not within the ambit of the European Community, makes it difficult to imply such an exception."
However, Lloyd J upheld the defendants' submission that on the facts alleged the plaintiff's claim was bound to fail. He held that the degree of similarity between the plaintiff's drawings and the defendants' was not sufficient to give rise to an inference of copying. He considered that the claim was based on speculation and accordingly ordered the whole claim against each of the defendants to be struck out.
Appeal
The plaintiff
appealed to the Court of Appeal which allowed his claim to continue on
the ground that an English court is not required by the first limb of
the double actionability rule to hold that a claim is bound to fail
because the acts done in Holland cannot amount to an infringement of UK
copyright.
Trial
The claim later went to trial but failed on the evidence (see
Pearce v. Ove Arup Partnership Ltd
and others [2001] EWHC Ch 455 (2 Nov, 2001)).
