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Colonial Cases

Palestine Telegraph Agency Ltd v. Jaber, 1931

[copyright]

Palestine Telegraph Agency Ltd v. Jaber

Palestine
1931-1932
Source: The Palestine Bulletin, 4 October 1931

 

COPYRIGHT CASE IN JERUSALEM

UNAUTHORISED USE OF NEWS.

   A charge of infringement of copyright brought by the Palestine Telegraph Agency Limited, against the editor, owners and printers of "Al Hayat," an Arabic daily in Jerusalem, was heard on Thursday before Mr. Cressall, the British Magistrate.

   The Plaintiffs are the sole authorised distributors of Reuter Telegrams in Palestine and of news received from their own correspondents all over the world.  This news is usually credited to P.T.A. - R.  The "Al Hayat" newspaper is not a subscriber to this news service, and the Plaintiffs claim that they are not entitled to make use of it.  As the Plaintiffs allege, the defendants had reproduced in "Al Hayat" on fifteen different occasions between July 1 and July 30 telegrams containing news supplied by the P.T.A., although warned not to do so.  The claim of the Plaintiff is for the value of the news used by the Defendants; damages; an injunction to restrain the Defendants from infringing the plaintiff's copyright; and a fine under the Copyright Ordinance of 1924.

English Law.

The three Defendants named in the case are Adel Eff. Jaber, Khair Eff. Eddin El Zakali and Khaled Eff. Douzar, of which only the first was represented in Court.  The magistrate was uncertain whether it was within his jurisdiction to grant the injunction requested, to which Counsel for the plaintiffs replied that as "Al Hayat" is at present suspended, that point was of no practical importance in the case.

   The argument in Court centred on the question of whether the Copyright Law of England could be applied to Palestine.  It was argued on behalf of the Defendant that the Act was not part of the Law of Palestine since it was not published in the Official Gazette; although a notice of its extension to Palestine had been gazetted.

   The case was adjourned until October 9 for a decision on the questions raised.

   Mr. K. Freidenberg appeared for Plaintiffs, and Abcarius Bey for Mr. Adel Jaber.

 

 

Source: The Palestine Bulletin, 11 October 1931

Palestine Telegraph Agency

vs.

Adel Jaber, Khaleed Douzfar, Khair Eddir El-Zarkali.

 

Damages for Infringement of Copyright.

   The following judgment was delivered on Friday by Mr. Cressall, the British Magistrate.

   In this case, the Plaintiff as owners of the copyright in certain news summaries are claiming from the defendants who are the Editor, owners and publishers of the newspaper "Al Hayat," damages for the infringement of their copyright.  An objection has been raised by Mr. Abcarius, counsel for the first named defendant, based on the fact that the British Copyright Act 1911 (on which the plaintiff's case is grounded) had not been promulgated in Palestine.

   Put shortly, he contends that although an Order in Council was published extending the Act to Palestine, the Act itself was not published in accordance with the provisions of the Palestine Order in Council and for this reason is not law in the country.

   Mr. Freidenberg, for the plaintiffs, on the other hand maintains that the promulgation of legislation enacted by Order in Council is unnecessary, for while certain restrictions have been placed on the local legislative authority with regard to ordinances, no restriction exists as to legislation introduced by the Crown.

   The question raised is not without interest and in order to come to a legal conclusion on the matter it is necessary to examine briefly, the circumstances in which it has arisen.

   By the Mandate of Palestine dated 24th July, 1922, the Council of the League of Nations in accordance with the Covenant of the League entrusted to Great Britain the administration of Palestine.  Article 1 of the Mandate states, "The Mandatory shall have full powers of legislation and of administration save as they may be limited by the terms of the Mandate."

   On 10/8/22 the Palestine Order in Council was made in which the authority to make laws for the peace, order and good government of Palestine was entrusted to a legislative council subject to a proviso that no ordinance should be passed which should be in any way repugnant with the terms of the mandate.

   On 4/5/24 an amending Order was passed transferring this legislative authority to the high Commissioner and a procedure was laid down by which no Ordinance was to be promulgated unless a draft of it had been published at least one calendar month before its promulgation.  This restraint was subject to the right of the High Commissioner to dispense with the draft publication in certain cases which however are immaterial to this case.

Unfettered Rights Of The Crown

   The delegation of the Crown's authority and power was without prejudice to the powers inherent in or reserved by the Order to His Majesty (article 17), and by Artifice 89 the right to make all such laws or ordinances as may appear to the Crown necessary for the peace, order and good Government of the country in accordance with the Mandate was expressly reserved to His Majesty in Council.

   Now there can be no question that the Crown, apart from its prerogative power, obtains its jurisdiction in foreign countries by virtue of the Foreign Jurisdiction Act 1890.  This Act applies to every foreign country in which "by treaty, capitulation, grant usage suffering or any other lawful means," His Majesty has jurisdiction, and it further provides that this jurisdiction may be exercised in the same and as ample a manner as if His Majesty had acquired it by the cession or the conquest of the territory.

   The jurisdiction exercised by the Crown and its Imperial Parliament in Palestine under the Mandate has been held to come within the above description.  (District Governor, Jerusalem-Jaffa District and another v. Suleman Murra and another, 134 L.T. 609).

   A mere delegation of power therefore cannot invalidate or fetter in any way the established rights of the Crown, both prerogative and statutory, nor can any restriction imposed upon the delegated authority alter or modify in the slightest degree the fundamental principles which govern the operation and commencement of laws introduced by virtue of this right.

   In my view the true position of Palestine, judicially, is that of a "dependency" of the Crown in which part of the legislative authority has been delegated to a High Commissioner with the statutory sanction of the Foreign Jurisdiction Act.  This delegated power, subject to certain restrictions, is exercised concurrently with the Crown which retains the right to create legislation and to introduce existing Imperial laws by means of Orders in Council.

The Copyright Act

   Now the Copyright Act 1911 confers on His Majesty in Council authority to extend its provisions to countries under British protraction by means of Orders in Council and it further provides that "on the making of such Order the Act shall, subject to the provisions of the Order, have effect as if the territories to which it applies were part of His Majesty's Dominions to which the Act extends."

   On 21/3/24 an Order in Council was passed extending the [provisions of the Act to Palestine, and on 1/5/24 a Proclamation was published by the High Commissioner fixing the date of its commencement as from 21/3/24.  The Act itself was not published but an Ordinance, No. 16 of 1924, was promulgated making provision for certain summary remedies in the place of the English penalties and it was enacted that the English Act should be read  as added to or signified by the Ordinances.

   On considering the effect of Orders in Council it must be remembered that they have the force of Acts of parliament.  Statutes of the Imperial Parliament do not require promulgation to become effective.  Where no other time is provided for their commencement they become operative on the day they receive the Royal Assent.  The same principle must be applied to Orders in Council, and it is clear that what is sufficient to make an Order in Council effective in Great Britain is also stuffiest in any of the territories over which the Crown exercises jurisdiction.

   To sum up: - There are two methods by which laws are established in the country.  (a) By Ordinances initiated by the High Commissioner in Advisory Council, and (b) Orders in Council emanating from the King in Council.  Ordinances under (a) are subject to the restrictions already mentioned and can be promulgated to be come effective.  Orders in Council under (b) come into operation immediately a proclamation is issued fixing the date of their commencement.  Under the latter any Statutes of the United Kingdom which, by their terms, make provision for their extension to Palestine become law of the land upon an Order in Council being issued followed by a proclamation fixing the days of their commencement, and promulgation of their actual contents is unnecessary.
   For the reasons given I am of opinion that the objection raised is unsound and it is accordingly overruled.

 

Source: The Palestine Bulletin, 30 October 1931

PROTECTION OF NEWS.

P.T.A. WINS COPYRIGHT CASE.

   The protection of copyright in news will be considerably strengthened as a result of the decision by Mr. Cressall, the British Magistrate, yesterday, in holding that the "Al Hayat" was not entitled to reprint cables published by the "Palestine Bulletin" supplied to it by the Palestine telegraphic Agency, Limited.

   A considered judgment will be delivered on November 7, but Mr. Cressall stated after the resumed hearing yesterday which lasted for three hours, that the Copyright was vested in the "Palestine Bulletin," and that on the facts the case has been proved and that there was no substance in Adel Eff. Jaber's argument that news are not protected by the Copyright Act.

   The Respondent's witnesses included the editor himself. Adel Eff. Jaber, and Hassan Sidki Dajani, who described  himself as a friend of the newspaper, and who asserted that he had supplied "Al Hayat" with news about the Zionist Congress received by him through a radio set.

   Mr. Freidenberg, who appeared for the Palestine Telegraphic Agency, and the Palestine Bulletin Ltd., also represented the Attorney-General.  He asked the Court to issue an injunction against Al Hayat restraining them from using the news of these companies and also to order Respondents to publish at their cost in several papers in the three languages the judgment in this case.  He also applied for damages and a fine under the Copyright Act.

   Abcarius Bey, for the respondent, argued on the basis of the Mejelle that the case had not been proved and that the Copyright Act does not cover news, a view which the magistrate rejected.

 

The Palestine Bulletin, 30 March 1932

LITERARY LARCENY

THE PALESTINE BULLETIN v. EL-HAYAT CASE: JUDGMENT

   The District Court if Jerusalem has delivered a reserved judgment in the appeal brought against the judgment of the British Magistrate in the action instituted by the Palestine Telegraphic Agency Limited and Palestine Bulletin Limited against the editor and proprietors of the "El-Hayat" newspaper for infringement of copyright in news. 

   The British Magistrate found that the El-Hayat newspaper systematically reprinted news conveyed to the Palestine Bulletin in a form which served as a glaring example of what has often been termed "literary larceny."  He said in his judgment that the defendants, without expense and trouble, and without even an acknowledgment of the source (though that would not necessarily excuse then), have systematically abstracted matter from the Palestine Bulletin.  They, using the words of an eminent English judge, "for the purpose of their own profit," desired to reap where they have not sown and to take advantage of the labour and expenditure of the plaintiffs in  procuring news for the purpose of saving labour and expense to themselves." The British Magistrate said in his closely reasoned judgment that "journalists should remember that while lawful use of articles and contributions for the purpose of review or criticism is allowed, unauthorised copying from another newspaper, has always been illegal and such a practice is bound to involve them in legal proceedings."

   Pirating

   The British magistrate, taking into account that the infringement took place at least 24 hours after the original publication with the result that a great deal of the interest in the news had passed away, and that the "pirating" of the plaintiff's copy has been committed in a language entirely different to the one in which such copy appeared, gave judgment against defendants assessing the damage of L.P. 10 and ordered them to pay the costs of the action.  In view of the fact that these proceedings were the first to be brought under the copyright ordinance and also because damages have already been awarded in the civil case, the British magistrate thought that justice would be met if a purely nominal fine of 100 mils was imposed in the criminal action.

   As already stated, the District Court confirmed this judgment but decided to remit for retrial the criminal action, which resulted in a nominal fine, as the criminal and civil actions which were tried together ought, in the opinion of the Court, to have been tried separately, although the advocate of defendant consented to that course.

   The Court dealt with the arguments in the appeal; that the Imperial Copyright Act 1911, although by an Order-in-Council extended to Palestine, is not valid in Palestine because it has not been promulgated here in the "Official Gazette."  The Court for legal reasons dismissed this argument, holding that the Copyright Act forms part of the law of Palestine.  The Court, however, adds:

"Although we are fully aware that in most cases of British Colonies it is not the practice to publish the provisions of an Act of the Imperial parliament which applies to the colonies and further that by Order in Council 1922 certain Imperial Statutes, the provisions of which have not been published in Palestine, form part of the Law of Palestine, yet we feel it our duty  to state that in our opinion in a country like Palestine the Government should consider very earnestly the desirability in the future of publishing in extenso all the laws of the country."

   Mr. K. Freedenberg appeared for the Palestine Bulletin, Limited, and the Palestine Telegraphic Agency, Limited, in this action, and also conducted the prosecution on behalf of the Attorney General.  Mr. B. Abcarius appeared for the defendant Adel Eff. Jaber, Editor of the "El-Hayat."

Published by Centre for Comparative Law, History and Governance at Macquarie Law School