On 11 May 2017, the Plaintiff filed a Claim for damages for breach of copyright under the Copyright and Designs Act, 2004 (“CDA”). The Court ordered the trial of two preliminary issues arising from BBC’s Defence to the Plaintiff’s claim. Because the preliminary issues ordered to be tried sought a determination of the validity of a Public Act, the Attorney General was joined to the action for the purposes of the trial.
The BBC contended that the CDA was, by virtue of Section 2 of the Colonial Laws Validity Act, 1865, entirely void from inception for repugnancy with the Copyright, Designs and Patents Act, 1988 (“1988 UK Act”), which extended to Bermuda when the CDA became operative in 2008 – the application of the 1988 UK Act to Bermuda was revoked in late 2009.
The BBC submitted that Bermuda’s Legislature was not constitutionally competent to legislate in its own right in relation to foreign copyright protection, as the rights conferred lacked a substantial connection to Bermuda.
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Performing Right Society Limited -v- Bermuda Broadcasting Company Limited -and- The Attorney General (2017) SC (Bda) 56 CIV (21 July 2017)