Phonographic Performance Ltd v Maitra
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR |
| Judgment Date | 03 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0203-12 |
| Docket Number | CHAN1 97/1024-6/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 February 1998 |
[1998] EWCA Civ J0203-12
The Master Of The Rolls
(Lord Woolf)
Lord Justice Aldous
Lord Justice Mummery
CHAN1 97/1024-6/3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR JUSTICE CHADWICK)
Royal Courts of Justice
Strand
London WC2
MR P GOLDSMITH QC MR J RAYNER-JAMES and MISS A MICHAELS (Instructed by Messrs Green Sheik, London W1H 2BY) appeared on behalf of the Appellant.
The Respondents did not attend and were not represented.
MISS M VITORIA QC (Instructed by the Mr N Kounoupias, Solicitor for the Performing Rights Society) appeared on behalf of the Intervenor, The Performing Rights Society.
MR M SILVERLEAF QC (Amicus Curiae) (Instructed by The Treasury Solicitor, London, SW1H 9JS)
This is the judgment of the Court. Following the decision in Gramophone Co Ltd v Cawadine & Co (1934) 1 Ch 450, which established for the first time that under s.l of the Copyright Act 19ll a performing right subsisted in a record, Phonographic Performance Limited (PPL) were incorporated to exercise and enforce performing rights assigned by gramophone companies to PPL. That right was preserved in the Copyright Act 1956, (s.12(5)(b)) pursuant to the recommendation of the Gregory Committee, and is now enshrined in the Copyright, Designs and Patents Act 1988 (s.l6(l)(c) and s.19).
This appeal raises the question of what is the appropriate order to be made when final judgment for infringement of copyright is given in favour of the PPL in default of defence.
The Factual Background
PPL, as assignees, now administer on behalf of the vast majority of record companies, the performing, broadcasting and cable programme rights in their sound recordings. Like other collecting societies, PPL operate a number of standard tariffs for annual licences applicable to different classes of users which are either negotiated with music user organisations or have been decided after a reference to the Performing Right Tribunal, now the Copyright Tribunal. A person who takes a licence is entitled to use all of the recordings in the repertoire of PPL's member companies.
PPL, unlike the Performing Right Society (PRS) which performs a similar function on behalf of composers, authors and publishers, do not have inspectors who visit premises to ascertain whether copyright works in their repertoire are being used without a licence. They monitor the press and conduct surveys of particular businesses. If it comes to their notice that unlicensed use may be made, PPL write to the person concerned drawing his attention to the need for him to obtain a licence. If he fails to apply for a licence, further letters are written to persuade him to take a licence before solicitors are instructed. The solicitors, when instructed, write at least one letter before action and, if no satisfactory reply is received, engage enquiry agents to ascertain whether there is infringement and if so to obtain evidence upon which an action for infringement could be based. It is only then that proceedings for infringement of copyright are started.
The proceedings are normally commenced by a writ endorsed with a Statement of Claim. Annexed to the Statement of Claim is a schedule of the current repertoire of PPL. The copyright in the recordings referred to in the schedule will expire on different dates. Concern has been expressed that if the court grants injunctive relief in relation to the recordings forming the repertoire at any particular time this will result in the defendant being restrained in relation to a recording after its copyright has expired. We recognise that in theory this must be a possibility. However we do not consider that in practice this requires any change to the way the proceedings are now usually conducted.
Inevitably any proposed defendant will be playing a variety of recordings. In view of the dominant position of PPL it is inconceivable that no recordings in which PPL holds the copyright will not have been played and likely continue to be played, if not restrained, by a proposed defendant. If such a defendant is licensed he is licensed for all the recordings in the repertoire. If he is not licensed and is providing music for the public he will inevitably infringe PPL's copyright and which particular recording's copyright is infringed will be a matter of no concern to the proposed defendant.
A person who applies for a licence before starting to use the repertoire pays at the standard tariff rate. To encourage that to happen juke box licensees who do not apply in advance are normally required to pay a slightly higher royalty rate for the first year
and to pay that rate from the first day of use. That has been accepted by the Copyright Tribunal to be reasonable in principle.
The way that the question for decision arose is fully set out in the judgment in the Chancery Division of Chadwick J. ( [1997] 3 All ER 673). PPL have for many years sought and obtained from the Judges of the Chancery Division final judgment in default against persons using the repertoire who have failed to take a licence. The orders made included an injunction to restrain further infringement in the normal form, ie with immediate effect and without an express limit of time.
This appeal arises out of applications by PPL in 1996 for judgments in default of defence against a number of Defendants. Notices of Motion for judgment in default were served seeking injunctions restraining the particular Defendants from infringing copyright without the licence of PPL, an enquiry as to damages and costs. Chadwick J concluded that final injunctions without limit of time were not appropriate and therefore limited the injunctions to a period of six months. He ordered enquiries as to damages and costs and that there should be "liberty to apply". He contemplated that the liberty to apply would enable PPL to come back to the Court to extend the term of the injunctions, if that proved necessary.
In a number of cases PPL considered it was necessary and, believing that the "liberty to apply" enabled them to do so, they came back to the Court to have the time limit removed. At an early stage of the hearing it became clear that PPL's submissions challenged the judge's decision to refuse to grant injunctions without a time limit. The judge concluded that it was not appropriate for him to entertain such submissions on those applications because, if he had been wrong to make the order which he did, it was for the Court of Appeal to reverse his decision. PPL indicated that they wished the matter to be considered by the Court of Appeal. To enable that to be done PPL brought before the judge, in proceedings started in 1997, two further Notices of Motion for judgment in default of defence. Thus, if he came to the same conclusion as he had done in the 1996 actions, the matter could be reviewed by the Court of Appeal.
This appeal is against the order made by Chadwick J in action Ch 1996 P.3979 in which Mr S Maitra was the defendant and against the orders made in the 1997 actions. As the issues of importance to PPL arise for decision in the 1997 actions PPL, rightly in our view, are content not to pursue the appeal in the Maitra action.
The first action Ch 1997 P No 2238 was started by writ dated 22 April 1997. It is endorsed with a Statement of Claim. It alleges that the Plaintiffs were the owners of the copyright in the repertoire; that the Defendant was the proprietor or occupier of "The Underworld Nightclub" which had record playing equipment for public performance; that the Defendant had infringed the Plaintiff's copyright on a specified date by playing a number of named records in the repertoire; that because of letters sent prior to that date the Defendant is and was at all material times well aware of the nature and extent of the Plaintiff's repertoire and that playing it in public constituted an infringement of the Plaintiff's rights. It is also pleaded:
"Despite requests the Defendant has failed to obtain a licence and has continued to infringe the Plaintiff's rights as aforesaid and it is to be inferred that it will continue to do so unless restrained by an Order of this Honourable Court."
The Statement of Claim concludes with a claim for an injunction in these terms:
"An injunction to restrain the Defendant from doing … the following acts or any of them that is to say infringing the Plaintiff's copyright by playing in public sound recordings issued under any of the names or marks specified in Schedule A annexed hereto or by authorising any of the acts aforesaid without the Plaintiff's licence but as to each such sound recording only during the respective periods during which the exclusive right to play the same in public is vested in the Plaintiff or from infringing the Plaintiff's copyright in any other way."
The writ was served by post pursuant to O.l0 r.1(2)(a) of the RSC. The Defendant did not acknowledge service, but, as required by O.l3 r.6(1), PPL proceeded as if notice to defend had been given. In June 1997 PPL applied by Notice of Motion for judgment in default as claimed in the Statement of Claim. There is no dispute that the appropriate procedure was adopted.
The judge ordered the enquiry as to damages sought and costs, but limited the injunction by inserting this proviso:
"But PROVIDED that
(i) the said injunction shall take effect from the day 28 days after the date of this Order or from such later day as the parties (in writing signed by them or by solicitors...
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