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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 167
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A805/05
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OPINION OF LORD EMSLIE
in the cause
PERFORMING RIGHT
SOCIETY LTD
Pursuers;
against
KWIK-FIT GROUP LTD
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: Connal, Q.C., Solicitor Advocate; McGrigors
Defenders: Johnston, Q.C.; Anderson Strathern
5 Otober 2007
[1] This
is a case in which the pursuers, as owners of the copyright in certain musical
works, seek interdict and damages in respect of alleged long-term infringement
by the playing of music at Kwik-Fit service centres all over the country. According to the pursuers, employees of the
defenders routinely use personal radios at work in such a way as to make
copyright works audible to colleagues and customers alike. This, it is said, constitutes the "playing" or
"performance" of such works "in public" for the purposes of section 16 of
the Copyright, Designs and Patents Act 1988, and renders the defenders
guilty of copyright infringement either directly or through others authorised
by them. Alternatively, the defenders
are charged with infringement under section 26(3) of the same Act, by permitting
employees to bring personal radios on to the premises in the knowledge, or with
reason to believe, that infringing acts were likely to occur.
[2] In
the procedure roll debate which I have heard, the defenders seek dismissal of
the action as irrelevant or, alternatively, on the basis that the pursuers'
averments do not provide fair notice of the case they have to meet. Apart from resisting these arguments, the
pursuers submit that the defenders' averments of a 10-year company policy
prohibiting the use of personal radios in the workplace do not constitute a
relevant defence and should not be remitted to probation.
[3] For
the purposes of this debate, neither party saw fit to address me on the law as
to what might properly amount to the public playing or performance of copyright
works. Both maintained that difficult
questions of fact and degree might arise in that area, depending on how the
evidence turned out at any proof, and that there was thus little to be gained
by considering such issues in any detail at the present time. At one point during his submissions, however,
I understood counsel for the defenders to accept, in broad terms, that if
copyright music was audibly performed to members of the public or to workers as
a group that could well constitute infringement.
[4] Both
parties addressed me at some length on the concept of "authorisation" for the
purposes of section 16(2) of the Act. By
reference to various decided cases and textbook analyses, notably the leading decision
of the House of Lords in CBS Songs Ltd
and Others v Amstrad Consumer
Electronics Plc and Another 1988 AC 1013 (especially the speech of
Lord Templeman at p.1054), the pursuers submitted that the element of
control was of particular importance in present circumstances where the
authorised parties were the defenders' own employees in the workplace. The defenders, as employers, were in a
position to direct and control the working environment and all activities there,
and accordingly the inference of authorisation, express or implied, could
readily be drawn against them in the circumstances averred. For the defenders' part, they accepted that
control was one of the factors which might legitimately be considered by the
court, but maintained that it could never by itself be sufficient to establish
authorisation for the purposes of section 16(2). What was required, on the authorities, was
something in the nature of a grant or purported grant to a third party of the
right to do the act complained of, and in the defenders' submission the
pursuers' pleadings in this case fell short of meeting that requirement. The defenders were simply not in a position
to grant their employees the right to infringe the pursuers' copyright.
[5] Against
that background the main alleged deficiencies in the pursuers' pleadings to
which the defenders drew attention were (i) the absence of any offer to
prove that the defenders themselves actually "played" or "performed" any
musical works for the purposes of section 16 of the Act; (ii) failure to aver facts and
circumstances capable of setting up "authorisation" for the purposes of
section 16(2); (iii) lack of
specification of the precise date, location, nature and degree of audibility of
each alleged instance of infringement;
and (iv) failure to aver either the permission or the state of mind
necessary for secondary liability under section 26(3). In response the pursuers maintained that
their averments were relevant and sufficiently specific to go to inquiry, it
being impossible for the court to hold at this stage (applying the classic test
for relevancy) that even if all such averments were proved the action would
nevertheless be bound to fail.
[6] By
way of an unopposed amendment at the Bar, the pursuers incorporated into their
pleadings an extensive schedule detailing country-wide inspection data
regarding the audible playing of music at Kwik-Fit premises on more than
250 occasions in and after 2005.
This was allied to inter alia
the following further averments:
"The public
performance of copyright works has continued at premises controlled by the
defenders by various means, primarily the use of mobile radios within the bay
areas of said premises, tuned to radio stations broadcasting popular
music. By the nature of the defenders'
premises music from mobile radios within the bay areas is audible both by
members of staff and members of the public who are within those areas or entering
or leaving them. The playing of said
music will also be known to the defenders' management present on each
unit. The playing of said music
continues, including the playing of large numbers of works in which the pursuer
holds copyright. Reference is made to
the schedule produced detailing the individual units of the defenders' business
inspected on behalf of the pursuers, together with the dates of
inspections. ... On each of these dates music, including work
copyright of the pursuers, was audible, both to workers within the workshop
area and to members of the public when present in that area. On each of those occasions, music was
provided by means of a radio or similar appliance in the workshop area. On a number of occasion music, audible in the
same manner, was also provided within the reception area. The instances of music in reception areas are
specifically identified on said schedule.
... In the period between 1997
and the present date approximately 50% of all units operated by the
defenders have been playing music in that manner".
[7] According
to the pursuers, their pleadings were more than sufficient to warrant a proof at which, through a modest
number of inspectors, they would expect to establish everything allegedly found
and recorded on each inspection visit.
The key point to note, it was said, was that the findings on each
occasion were the same, with music audibly "blaring" from employees' radios in
such circumstances that the defenders' local and central management could not
have failed to be aware of what was going on.
Moreover, this state of affairs had continued over many years in the
face of repeated correspondence from the pursuers alleging infringement and
seeking remedial action. All necessary
inferences could thus be drawn against the defenders for the purposes of infringement
under section 16 and/or section 26(3), and matters were placed beyond
doubt by the defenders' own company policy which expressly proceeded on the
basis that the playing of radios in the workplace was against the law and
liable to constitute copyright infringement.
In addition the defenders' own recent survey, narrated in the pleadings,
apparently confirmed that "... 51% of their garages were using music in the
manner hereinbefore condescended upon."
[8] In
my opinion there is some force in the defenders' contentions regarding lack of
specification in the pursuers' averments.
By way of illustration, I think that the precise conduct alleged against
the defenders themselves could have been more clearly and specifically
averred; more could have been said about
the degree of audibility of music played at different premises at different
times; the same applies to the extent to
which copyright works were involved; and
explicit averments might have been included as to the defenders having done or
authorised infringing acts, or as to their having permitted the use of personal
radios in the workplace in the knowledge, or with reason to believe, that
copyright infringement was likely to occur.
However, looking broadly at the pursuers' averments as a whole, I am not
persuaded that they are irrelevant in the sense that, if they were all fully
proved, the case would nevertheless be bound to fail. Equally, it does not seem to me that the
defenders are currently denied fair notice of the case against them to such a
degree that dismissal, or partial exclusion from probation, could be regarded
as a realistic option.
[9] As
characterised in the course of the debate, the pursuers' allegations are of a
widespread and consistent picture emerging over many years whereby routine
copyright infringement in the workplace was, or inferentially must have been,
known to and "authorised" or "permitted" by the defenders' local and central
management. If that picture were to be
satisfactorily established after proof, it is in my view at least possible that
liability for copyright infringement would be brought home against the
defenders under either or both of sections 16 and 26(3) of the Act. At this stage, certainly, such an outcome cannot
be ruled out, especially in circumstances where the true scope and application of
the law regarding the "playing" or "performance" of copyright works "in public"
have not been explored in argument. On
relevancy grounds, therefore, the pursuers are in my view entitled to the inquiry
which they seek. Having reached that
conclusion, however, I am not to be taken as accepting that, on proof of the
averments in question, the pursuers would necessarily succeed in their claims
against the defenders. In the course of
the debate various hypothetical situations were figured in which charges of
copyright infringement might arguably go beyond the contemplated scope of the
legislation and/or offend against common sense.
Whether, in the event, any such difficulties materialise in this case
will depend on how the evidence turns out at the proof.
[10] Reverting to the defenders' complaint of a lack of fair notice,
it seems to me that, with the assistance of the incorporated schedule, they now
know the scale and geographical extent of the picture which the pursuers seek
to paint against them. They also know
from the associated averments that the pursuers are offering to prove
consistent findings on each recorded inspection visit, to the effect that
copyright works played on personal radios are routinely audible to the
workforce and customers alike. In
addition the pursuers offer to prove a long-term state of awareness on the part
of the defenders' central and local management from which inferences of
"authorisation" and "permission" may legitimately be drawn. Against that background, it is hard to see
what further notice the defenders can now truly require, bearing in mind that
formal averments of the statutory wording of sections 16 and 26(3) of
the Act would tell them nothing that they do not already know. The defenders fairly acknowledge that proof
of every single instance of alleged infringement might be an unwieldy and
excessive exercise, but for the pursuers it was stressed that without some
agreed identification of a representative sample for the purposes of proof
there might be little alternative but to go the whole way. At this stage, all I need to say is that I am
not persuaded that the court can or should curtail the pursuers' freedom to
lead evidence, if they have to, on all of the matters particularised on Record
and in the incorporated schedule.
[11] Finally, as regards the defenders' averments of their
long-standing company policy prohibiting the use of personal radios in the
workplace, I am satisfied that they are relevant to go to inquiry and that the
pursuers' challenge is not well founded.
At the very least, as it seems to me, the existence of such a policy
must be one of the many factors to be considered in any assessment of the
defenders' alleged responsibility for primary or secondary infringing acts.
[12] For all of these reasons, I shall allow a proof before answer
of the parties' whole averments on Record, reserving in the meantime their
respective preliminary pleas.
