A summons was issued on behalf of the first defendant, which the claimant sought to have dismissed. The defendant asked that the issue of limitation be tried as a preliminary point to the decision of dismissing the summons.
The claimant’s claim for copyright infringement of the tune ‘Doh Try Dat’ was brought three years after the alleged infringement. The defense argued that a decision on the preliminary issue of a statute-barred case would likely result in disposal of the matter, which would save the courts time and reduce expenses.
In response to the defendant’s submission, the claimant contended that the issue before the court was not whether infringement occurred, but rather, the court was required to make a determination on damages according to section 6 of the Copyright Act 1911. However, proof of copyright infringement was a prerequisite to damages.
The court was satisfied that the matter of limitation had to be determined by a judge in chambers as a preliminary issue.
Cases referred to: Nicol v Barranger (1917-23) Copyright Cases 219 (C.A.)