Home | Databases | WorldLII | Search | Feedback Court of Appeal of Samoa

Galumalemana v Timani Samau & Sons Truck Services Ltd [2006] WSCA 6 (26 April 2006)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN

JOHN GALUMALEMANA
of Vailele, Composer.
Appellant

AND

TIMANI SAMAU & SONS TRUCK SERVICES LTD
a duly incorporated company at Matautu, Apia, Samoa.
Respondent

Coram: The Honourable Justice Ellis

The Honourable Justice Gallen

The Honourable Justice Salmon

Hearing: 18 April 2006

Counsel: Mr. S Leung Wai for the Appellant

Miss. M Tuatagaloa for the Respondent

Judgment: 26 April 2006

JUDGMENT OF THE COURT

Introduction

[1]. This is an appeal from a judgment of Vaai J granting an application to strike out the Appellant’s statement of claim.

Background

[2]. In 1975 the appellant composed the song 'Rosa'. It was released by appellant's cousin a well known singer at that time. In 2003 the respondent paid $1000 to the appellant to enable the inclusion of the song in an album titled 'Rosa Lelea.' The cover of the album showed the respondent as owner of the copyright of the song 'Rosa' and authorship was attributed to a person called Vito Seiulialii.

[3]. In his statement of claim the appellant alleged that the respondent infringed the appellant’s copyright by:

(a) failing to acknowledge the appellant’s copyright in the song 'Rosa'
(b) claiming ownership of the copyright
(c) failing to indicate the appellant’s name properly and prominently on the album as the author of the song.

The appellant claimed damages and other remedies.

[4]. The respondent moved to strike out the claim on the ground that the appellant did not have locus standi under the Copyright Act 1998.

[5]. In the Court below the Judge accepted the respondent’s argument that there was no copyright legislation in Samoa in 1975 and that the 1998 Act did not provide retrospective copyright protection to the appellant. He also held that there was no copyright protection at common law. This latter point seems clearly to be correct and that finding was not challenged on appeal. Consequently the Judge held that the song Rosa was not protected by copyright and struck out the appellant’s claim.

The appellant’s submissions

[6]. Mr. Leung Wai for the appellant identified the sole issue for this Court as whether the Copyright Act 1998 applies retrospectively to protect locally produced songs composed before the Act came into force. He acknowledged that there was no copyright legislation in force in 1975 but submitted that s.1(3) of the 1998 Act had retrospective effect and thus provided the necessary protection.

[7]. Counsel noted the provisions of the Acts Interpretation Act 1974 requiring a fair, large and liberal interpretation of statutes. He referred to extracts from the Parliamentary Debates during the second reading of the Copyright Bill on 8 June 1998 which he said showed that Members of Parliament understood the proposed legislation to provide retrospective protection for works created before the Act.

The respondent’s submissions

[8]. For the respondent Miss Tuatagaloa supported the decision in the Supreme Court. She submitted that the song Rosa did not come within the ambit of s.1(3) of the Act as it was not protected by law or under the legislation of Samoa at the time it was composed. She submitted that on proper reading of the section its retrospective effect only applied where copyright protection existed in the country of origin and the term of protection had not expired.

Discussion

[9]. We have concluded that the appeal should be allowed. This conclusion is based on our interpretation of ss.(3) but before turning to that section it is helpful to set out the history of copyright legislation in Samoa.

[10]. Before 18 December 1972 the New Zealand Copyright Act 1913 applied to Samoa by virtue of s.357 of the Samoa Act 1921. This Act was passed when Samoa became a territory of New Zealand. Counsel’s initial submission was that the Copyright Act 1913 ceased to apply as a result of the enactment of the Reprint of Statutes Act 1972. During discussion it became apparent that this was not so. In fact the Copyright Act 1913 ceased to apply to Samoa as a result of s.25 of the Trade Marks Act 1972 which repealed sections 357 and 358 of the Samoa Act. The repeal became effective on 19 December 1972 which was also the date on which the Reprint of Statutes Act 1972 came into effect. Mr Leung Wai was correct therefore in submitting that from the 19 December 1972 to 31 August 1998 Samoa did not have any copyright legislation.

[11]. Section 1(3) of the Copyright Act 1998 provides:

The provisions of this Act shall apply also to works, performances, sound recordings and broadcasts dating back to before the date of the coming into effect of this Act, provided that the term of protection had not expired by law or under the legislation of the country of origin of such works, performances, sound recordings or broadcasts that are to be protected under an international treaty to which Samoa is party, and to that extent this Act shall have retrospective effect.

Provided that this Act shall not affect the terms or validity of contracts on works, performances, sound recordings and broadcasts concluded before the entering into force of this Act.

[12]. The proper approach to interpretation of the section requires first that the meaning of the words prior to the provisos be ascertained, and then consideration given to whether the provisos limit that meaning.

[13]. In our view the general words of the section prior to the provisos make it clear that the effect of the Act is extended to apply to works etc... created before the commencement of the Act. This must include the song 'Rosa.' There is nothing in those words that would require the existence of legislation prior to that of 1998 before such protection would apply. The provision is in general terms and clearly capable of applying to works created in Samoa at a time when no copyright protection existed. Referring to the first part of the first proviso there is no suggestion that the term of that protection had expired by law. The second part of the first proviso does not apply – it applies to works originating in a country other than Samoa. The final proviso does not affect the protection given by the Act. There is nothing in the balance of the Act which would suggest that protection was not given to works created prior to the enactment of the legislation. The clear provisions of s.1(3) overcome the usual presumption against retrospectivity of legislation.

[14]. This interpretation is consistent with the views of those members of Parliament whose speeches are quoted in the submissions of Mr. Leung Wai.

[15]. For the above reasons the appeal is allowed. The respondent must pay costs to the appellant of $500.00.

Honourable Justice Ellis

Honourable Justice Gallen

Honourable Justice Salmon

Solicitors

Leung Wai Law Firm for Appellant

Brunt Keli Law Firm for Respondent