Performing Right Society Ltd v Qatar Airways Group Q.C.S.C.
| Jurisdiction | England & Wales |
| Judge | Mr Justice Birss |
| Judgment Date | 17 July 2020 |
| Neutral Citation | [2020] EWHC 1872 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: IL-2019-000150 |
| Date | 17 July 2020 |
[2020] EWHC 1872 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST
Royal Courts of Justice
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Justice Birss
Case No: IL-2019-000150
Edmund Cullen QC (instructed by Wiggin LLP) for the Claimant
Nicholas Saunders QC and Chris Aikens (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Defendant
Hearing dates: 18th June 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application by the defendant, Qatar Airways (QA), to stay a claim of worldwide infringement of copyright, on grounds of forum non conveniens or alternatively on case management grounds.
The claimant, Performing Right Society Ltd (PRS), is a collecting society whose members comprise writers, composers and publishers of musical works. PRS is the assignee from its members of (i) the right to perform in public the musical works created by them and (ii) the right to communicate those works to the public within the meaning of sections 19 and 20 of the Copyright, Designs and Patents Act 1988 (“the UK Performing Right”). There are over 5.5 million musical works whose UK Performing Right is owned by PRS (“the Repertoire Works”). The Repertoire Works are released as sound recordings and used in films, television shows, games and other audio-visual works.
PRS is not only the assignee of the UK rights. PRS is also assigned the equivalent to the UK Performing Right for the Repertoire Works for all countries in the world (“the Worldwide Performing Rights”).
QA is a passenger airline and the national airline for Qatar. QA has 206 commercial passenger aircraft in operation and operates scheduled passenger flights to more than 160 destinations in 80 countries. During flights, QA aircraft will pass through the airspace of non-destination countries as well as destination countries and international airspace. The flight routes are flexible and subject to change according to factors such as weather. QA calculated that, in January 2020, QA aircraft utilised the airspace of 123 countries.
QA offers an inflight entertainment system known as “Oryx One” (“the IFE System”). Some of the details of the IFE System are the subject of dispute. PRS asserts that passengers on a QA aircraft can access audio / audio-visual content via individual onboard screens and headphones or via an “Oryx One Play” application that is downloaded on the passenger's laptop, mobile device or tablet. PRS asserts that an additional “Oryx One” application allows passengers on a QA aircraft to create playlists of content prior to boarding the flight. PRS asserts that passengers can access the IFE System before, during and after each flight. Ms Rachel Alexander, a partner of PRS' solicitors, states, in her witness statement in support of PRS, that she understands from individuals who have flown with QA that the IFE System can be accessed by passengers while the aircraft is on the ground.
Mr Enser, a partner of QA's solicitors, gave two witness statements in support of QA's application. In those witness statements, he states that the “Oryx One Play” application is available only on those aircraft that are not equipped with the “Oryx One” onboard screen system and that it cannot be used on laptops. He states that the “Oryx One” application cannot be used to stream audio/audio-visual content save for some trailers and scheduled content can only be transferred from the application to the onboard entertainment screen if the aircraft is fitted with near field communication. He states that the IFE System is only provided during a flight and not before or after.
PRS asserts that the Repertoire Works are included in the content provided on the IFE System. At least 5,800 of the Repertoire Works are said to be made available through the IFE System. QA accepts that, under UK law, PRS is likely to be the owner of the UK Performing Right that is embodied in at least some of the audio/audio-visual works that passengers of QA are able to listen to or view on QA's aircrafts. However, in relation to the “Oryx One Play” application in particular, Mr Enser explains that it does not have any audio tracks, save for Holy Quran recitation audio, and that the majority of TV and movie titles available on it consist of Arabic and other non-Western titles.
It is common ground that airlines are generally granted licences by copyright collecting societies domiciled in the same country as the airline. Collecting societies also tend to have reciprocal agreements that allow them to grant licences in respect of rights assigned to foreign collecting societies. It is also common ground that there is no collecting society based in Qatar. PRS provides a tariff, Tariff AC, to UK registered aircraft but not to foreign registered aircraft. As of May 2020, PRS does not directly license any airline domiciled outside the UK.
PRS wishes to license QA in respect of the Repertoire Works on a worldwide or territory-by-territory basis. It also believes that it can obtain an extension to its reciprocal agreements with other collecting societies which would enable it to license works beyond the Repertoire Works. There remains some dispute between the parties as to what proportion of the works utilised by the IFE System would be covered by such a licence.
On 23 December 2019, PRS issued a claim in this jurisdiction against QA for a declaration that QA has infringed the Worldwide Performing Rights, an injunction to prevent further infringement and an inquiry for corresponding damages. PRS alleges that:
i) when the relevant aircraft is present in the UK, whether on the ground or in the territorial airspace of the UK, the playing or making available of any Repertoire Work through the IFE System amounts to a public performance and / or communication to the public of that work within the meaning of sections 19 and 20 respectively of the Copyright, Designs and Patents Act 1988;
ii) when the relevant aircraft is present in Qatar, whether on the ground or in the territorial airspace of Qatar, or when the relevant aircraft is in international airspace, the playing or making available of any Repertoire Work through the IFE System amounts to a public performance and / or communication to the public of that work within the meaning of Article 7(6) and (7) respectively of the Qatari Law No.7 of 2002 on the Protection of Copyright and Neighbouring Rights; and
iii) when the relevant aircraft is present in any (other) country that is a signatory to the Berne Convention, the WIPO Copyright Treaty or the TRIPS Agreement, whether on the ground or in the territorial airspace of that country, the playing or making available of any Repertoire Work through the IFE System amounts to a public performance and / or communication to the public of that work within the meaning of corresponding provisions enacted in that country.
QA was served with these proceedings within the jurisdiction, namely at the London address of its UK branch. QA accepts that it has been so served and that this court therefore has jurisdiction as of right. However, QA applies for an order under CPR rule 11(1) that this court should not exercise any jurisdiction which it may have. QA asserts that the appropriate forum for these proceedings is in Qatar and offers an undertaking that it will not challenge the jurisdiction of the Qatari courts to hear the entirety of this claim. PRS accepts that Qatar could have jurisdiction to hear these proceedings but asserts that the most appropriate forum is this court.
Given the nature of this application, QA has not served a defence to these proceedings. Mr Enser has, however, set out an outline. In addition to the factual disputes in respect of the IFE System, QA denies, or at least does not admit, that there has been any public performance or communication to the public of the Repertoire Works whether by the playing or the making available of such works. This position applies both to acts in the UK covered by sections 19 and 20 of the Copyright, Designs and Patents Act 1988, acts covered by Qatari law and acts worldwide.
I will deal with the forum non conveniens issues first and then, if necessary, the stay on case management grounds.
Foreign copyrights and jurisdiction
It was common ground that these proceedings are justiciable in this court, despite the involvement of foreign copyright infringement. It was established by the Supreme Court in Lucasfilm Limited v Ainsworth [2011] UKSC 39 that the English court can have jurisdiction over claims for infringement of copyright by non-UK acts and under non-UK law where there is a basis for in personam jurisdiction. Also, at the hearing the defendant did not rely upon any alleged unavailability of injunctive relief in respect of non-UK acts, although that had been discussed in the evidence. The defendant merely submitted that Lucasfilm itself did not mean that the English courts were necessarily the or the most appropriate forum. I agree that the court in Lucasfilm was not concerned with the issue of forum non conveniens as it arises here (I say that because a different point on forum non conveniens was touched on by Lord Walker at paragraph 111 but it is not relevant).
Forum non conveniens — the law
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