PRS and Qatar Airways global music copyright infringement case takes off

Readers may remember this case between PRS and Qatar Airways from last year [Katpost here], for which the claim for global copyright infringement proceeds. In the latest hearing, on 23rd March 2021, the parties narrowed down the issues and dispute disclosure.

Re-cap of the dispute 

The applicant, PRS, is a performing rights collecting society, whose members are writers, composers and publishers of musical works. Their rights in these works include public performance and communication to the public in the UK, as well as performing rights for all countries in the world.

The defendant, Qatar Airways (QA), is the national passenger airline for Qatar, with 206 commercial passenger aircrafts which fly to 160 destinations in 80 countries. QA offers an inflight entertainment system "Oryx One". PRS said that passengers can access audio and audio-visual content via individual onboard screens and headphones, or via an app called Oryx One Play, downloadable on a laptop, mobile or tablet. The app, PRS claimed, allows passengers to create playlists of content prior to boarding that can be accessed by the passenger before, during and after a flight. QA said that the app is only available on aircrafts that do not have the Oryx One onboard screen system and that it cannot be used on laptops. They said that Oryx One does not stream audio/audio-visual content except for some trailers and scheduled content which can only be transferred from the app to the onboard entertainment screen if the aircraft is fitted with near field communication. They also said that the system is only provided during flight, not before or after.

In December 2019, PRS issued a claim in the UK against QA for infringement of worldwide performing rights, an injunction to prevent further infringement and an inquiry for corresponding damages. PRS alleged that when the QA aircrafts are present in the UK (on the ground or in the territorial airspace) the playing or making available of their repertoire work amounts to a public performance and/or communication to the public under the UK Copyright Designs and Patent Act 1988. Additionally, the same applies when the aircraft is in Qatar under Qatari Law No.7 of 2002 on the Protection of Copyright and Neighbouring Rights. Likewise, when the aircraft is in any country that is a signatory to the Berne Convention, the WIPO Copyright Treaty or the TRIPS Agreement, this amounts to public performance and/or communication to the public of that work within the meaning of corresponding provisions enacted in that country.

As we know, in July 2020 QA disputed the juridiction of the case, but Birss J held that the High Court of England and Wales was indeed the most appropriate forum. 

Fight or flight 

Following the "skirmish" on jurisdiction, the parties agreed that the claim should proceed in the first instance by way of trial of various issues of principle arising under UK and Qatari copyright law:

Why I oughtaaaa ... !
[The Wizard of Oz]

(1) Whether, on every occasion that one of the Repertoire Works (including any of the Sample Infringing Works) has been played to any of the Defendant's passengers via the Services at a time when the relevant aircraft was present in:

(i) the United Kingdom (whether on the ground or in the territorial airspace of the United Kingdom), the Defendant performed such work in public within the meaning of section 19 of the CDPA? [public performance right]

(ii) Qatar (whether on the ground or in the territorial airspace of Qatar), the Defendant performed such work in public within the meaning of Article 7(6) of the Qatari Law No. 7 of 2002 on the Protection of Copyright and Neighbouring Rights?

(2) Whether, at any time when one of the Repertoire Works (including any of the Sample Infringing Works) has been made available to any of the Defendant's passengers via the Services at a time when the relevant aircraft was present in:

(i) the United Kingdom (whether on the ground or in the territorial airspace of the United Kingdom), the Defendant communicated such work to the public within the meaning of section 20 of the CDPA? [communication to the public]

(ii) Qatar (whether on the ground or in the territorial airspace of Qatar), the Defendant communicated such work to the public within the meaning of Article 7(7) of the Qatari Law No. 7 of 2002?

(3) Whether, for the purpose of issue (2) above, the Defendant only communicated such work to the public when the Repertoire Work was actually played by one of the Defendant's passengers?

(4) Whether, for the purposes of issues (1) and (2) above, sections 19 and 20 of the CDPA are inapplicable when the relevant aircraft was only in the territorial airspace of the United Kingdom in transit to some other territory?

(5) Whether, for the purposes of issues (1) and (2) above, Articles 7(6) and 7(7) of the Qatari Law No. 7 of 2002 apply whenever the relevant aircraft was in the territorial airspace of a country other than Qatar in transit to Qatar or to some other territory?

In essence, with regards to public performance, there is no dispute that there is a performance of the work, but whether that work is performed in public. With regards to communication to the public, the issues are whether there was a communication and whether it was to the public. The TuneIn Radio judgment [Katpost here] is already making waves - PRS pointed to various features of the services offered by the TuneIn platform, including the aggregation of radio station streams, the categorization of music stations, the curation of station lists, the personalization of consent, and search functionality, which was identified as being of relevance in demonstrating the platform's degree of intervention in providing access to foreign internet radio streams, a point of importance to the question whether the services offered by the platform constituted a communication to the public.  

Disclosure 

PRS compiled a list of issues for disclosure, in order to determine the issues to be tried. They stressed that the fact-sensitive assessment of the QA Services, which was required to consider an infringement of the communication to the public right, meant that the court needed to have sufficient information, which was solely within QA's knowledge. This included information about the means of access to the content, the quantity and type of content, the way in which content is presented – e.g. whether curated or promoted by the search facilities offered – and whether the content was provided via the Services at a profit.

Disclosure [Album Artwork]

QA submitted that none of the items listed were genuinely key matters in dispute, the documentation of which was not needed for a fair resolution of proceedings. Deputy Master Francis stated, however, that both sides anticipated there to be significant disputes of fact to be determined at the trial, encompassing the items contained in the Lists of Issue for Disclosure.  

QA also contended that the order sought by PRS would involve a very extensive exercise in searching for documents and that the costs of this exercise would be disproportionate and could not be justified. Deputy Master Francis noted that whilst the estimated costs were substantial, this dispute is between two very large commercial entities, 

the issues are complex and of very great importance to both parties. 

As such, he was satisfied that the costs would not deter him from finding it appropriate to make orders for Extended Disclosure. Each item was then assessed as follows:

Issue 1: Is the Claimant 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 provisions corresponding to sections 19 and 20 of the CDPA in countries throughout the world?

This is a simple matter for PRS to prove by production of relevant sample assignments entered into by its members, but it is not in fact a question which the court is being asked to determine as a preliminary issue. Not an issue for disclosure.

Issues 3 and 4: To what extent is and / or was the Oryx One Play app available for use by the Defendant's passengers? To what types of devices can and / or could the Oryx One Play app be downloaded by the Defendant's passengers?

Order for Extended Disclosure made under the Model C requests as they are set out in section 1A of PRS's DRD

Issues 5 and 6: What content is and / or was available through (i) the Services and (ii) the Oryx One Play app? What content can and / or could be streamed using the Oryx One app?

Order for Extended Disclosure made under the Model C requests as they are set out in section 1A of PRS's DRD, but excluding the requests for usage reports and app data - "in order to keep such disclosure issues within legitimate bounds" since "usage reports and app data seem to go only to the question whether content has actually been accessed rather than it being made available via the apps so that it can be accessed."

Fly me to the moon
Image: Fergus Sullivan

Issue 7: How, and to what extent, does the Defendant optimize and promote content that it has made available through the Services?

Dismissed - QA had already admitted this, after PRS's investigations. They suggested that their might be additional ways, other than they ones they uncovered, and it was held that it would be for PRS plead them in its particulars of claim. 

Issue 9: Does the Defendant provide the Services for profit and / or are the Services intended to enhance the experience of the Defendant's passengers such that they form part of the package of benefits and services for which the Defendant's passengers pay?

Order for Extended Disclosure made under the Model C request as it is set out in section 1A of PRS's DRD, but excluding the requests for internal documents. 

This Kat is wondering if this case will proceed to trial, or perhaps QA will remember that sometimes your closest exit might be behind you... !