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62 The Strengths of the Pragmatic Tradition duce an exceptionally drastic legal remedy. The Anton Piller orders have been used principally against companies engaged in what may be called copyright piracy. In recent years the ready availability of means of copying prerecorded audio and video cassettes has of course become well known. Although all such activity may technically amount to a breach of copyright, nobody seriously supposes that purely private recording can be controlled by law; but doing it on a commercial basis for profit is a very different matter. The copyright owners feel, with every justification, that large scale commercial dealings in copied tapes is a fraud which ought to be stopped, but it is in practice very difficult to control this kind of fraud. The problem is that the copies themselves may be well concealed, or even abroad; and when individual outlets are tracked down, these can easily enough be closed down, but books and papers and records can quickly be destroyed or removed and the pirates can find new outlets. The Anton Piller order was devised to deal with this problem. 30 Like the Mareva injunction, the essence of the order is secrecy, and it therefore is applied for ex parte in the same way as the Mareva injunction. What the Anton Piller order gives the plaintiff is the right to enter the premises of a retail outlet for the pirated goods, to search the premises, and the books and records available there, in order to discover who are the principals behind the fraud. In addition, the records may give the plaintiff information about the numbers of copied tapes which have been produced and sold, and this can then be used as the basis for a claim for damages based on lost royalties. 30 See the leading case, Anton Piller K.G. v. Manufacturing Processes Ltd. [1976] Ch. 55.
The Strengths of the Pragmatic Tradition 63 Here again, new developments and extensions have occurred, and precautions have been taken to prevent abuse. Strictly speaking, the Anton Piller order does not give the plaintiff an actual right to enter the defendant's premises, but if the defendant refuses him access by force, he may be in contempt. In practice what happens is that the order is served by the plaintiff's solicitor, who will advise the defendant that he may consult his own solicitor, and will give him the chance to do so. But the defendant is for practical purposes restrained from disappearing or destroying the evidence in his premises. The efficacy of the Anton Piller order was greatly enhanced when it was decided that an order for disclosure of information could be attached to it, and although the House of Lords then proceeded to hold that such an order could not require a defendant to incriminate himself, 31 this decision was reversed within a few months by the Supreme Court Act 1981. 32 The availability of the orders was also extended in 1978 to catch the socalled "bootleggers" who attend live musical performances and record the music with secret recording devices concealed on their person or in suitable containers. 33 Like the Mareva injunction, these Anton Piller orders have been astonishingly successful. 34 They are in very extensive use, and I am told on good authority that a large firm of London solicitors maintains a whole section of its litigation department devoted to handling and serving Anton Piller orders. Again, as with the Mareva injunction, many new uses have been found for these orders. For instance, they can be used in passing off actions as well as in copyright 31 Rank Film Distributors Ltd. v. Video Information Centre [1982] A.C. 350. 32 s.72. 33 Ex p. Island Records Ltd. [1978] Ch. 122. 34 See Ann Staines, (1983) 46 M.L.R. 278.
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THE HAMLYN LECTURES Thirty-ninth se
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THE HAMLYN LECTURES THIRTY-NINTH SE
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PRAGMATISM AND THEORY IN ENGLISH LA
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CONTENTS The Hamlyn Lectures The Ha
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viii The Hamlyn Lectures 1962 Lawye
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THE HAMLYN TRUST The Hamlyn Trust c
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1. Pragmatism and Theory in English
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Pragmatism and Theory in English La
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112 The Weaknesses of the Pragmatic
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186 Table of Cases D.P.P. v. Majews
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188 Table of Cases Sidaway v. Bethl
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INDEX ACADEMIC LAWYERS, 5,132 comme
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Index 193 PARLIAMENTARY SOVEREIGNTY
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