PRS for Music off to a Flying start in copyright infringement claim against Qatar Airways

http://ipkitten.blogspot.com/2020/07/prs-for-music-off-to-flying-start-in.html

In a High Court decision – under Covid protocol of course – published 17/07/2020 – Mr Justice Birss dismissed an appeal by Qatar Airways, finding that a copyright infringement case brought by the Performing Right Society (PRS) should be heard by the English courts.

Background

The applicant, PRS, is a collecting society, whose members comprise of writers, composers and publishers of musical works. PRS have over 5.5 million musical works in their Repertoire of works assigned to them by their members, which are released as sound recordings and used in films, television shows, games and other audio-visual 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.

Dreaming about the days of catching flights…
Image: John

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 known as “Oryx One”. Not everyone agreed on the details of how Oryx One operates! PRS say 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 claim, allows passengers to create playlists of content prior to boarding that can be accessed by the passenger before, during and after a flight. QA say 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 say that Oryx One does not stream audio/audio-visual content except for some trailers and scheduled content which can only be transferred from the application to the onboard entertainment screen if the aircraft is fitted with near field communication. They also say that the system is only providing during flight, not before or after.

The dispute… 

PRS asserts that at least 5,800 of their repertoire works are made available through the QA 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, but maintain that the app does not have access to any relevant audio works.

PRS wants to license QA in respect of its repertoire works on a worldwide or territory-by-territory basis. Moreover, PRS believe that they can obtain an extension to their reciprocal agreements with other collecting societies which would enable PRS to license works beyond their own repertoire.
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. That said, as of May 2020, PRS does not directly license any airline domiciled outside the UK.

On 23 December 2019, PRS issued a claim in the UK 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 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.

The matter at hand; Jurisdiction 

QA accepted that it had been served in the UK therefore the UK High Court has jurisdiction, but applied for an order under CPR rule 11(1) that this court should not exercise any jurisdiction which it may have, on the basis that the appropriate forum for these proceedings is Qatar.

Forum non conveniens

In the leading case in this area, Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] AC 460, Lord Goff set out the relevant principles at 476-478. QA summarised the test in Spiliada as:
(1) Is there another available forum which is clearly and distinctly the natural forum, that is to say, the “forum with which the action has the most real and substantial connection”?
(2) If there is, is England nevertheless the appropriate forum, in particular because the court is not satisfied that substantial justice will be done in the alternative available forum?

Forum non conveniens – stage 1
Stage 1, addressed the following four factors: 1) the personal connections the parties have to the countries in question; 2) factual connections which the events relevant to the claim have with the countries; 3) applicable law; and 4) factors affecting convenience or expense such as the location of witnesses or documents.
1 Personal connections
PRS is primarily based in the UK, as are their employees, representatives. AQ is in based in Qatar, and has 128 offices in 73 different countries and approximately 46,000 staff worldwide, including Vice President Legal at QA, Mr Rehan Akram, who is a graduate of the University of Cambridge and qualified as an English solicitor. As such, PRS and QA both have a close and genuine link to their home state. QA has rather stronger links to the UK than PRS has to Qatar, but the degree of that difference is small.
Is this is personal or factual connection?
Image: Remy Sharp
2 Factual connections
The events relevant to the claim are the playing of music in the aircraft, where that occurs depends on where the aircrafts are. About 98% of QA’s flights either start or finish in Qatar, whereas by contrast 5% of QA flights either start or finish in the UK and in fact UK destinations represent only 3.4% of the destinations served by QA. As such, the aircraft spend more time in Qatar than they do in the UK. However, the court also agreed that relevant acts do take place in the UK, and a great deal of the activity in issue takes place in other countries, neither Qatar nor the UK.
3 Applicable law
When an aircraft is in a destination country or its airspace, the law of that country applies. As such, when the aircraft is in Qatar, Qatari law applies and when in the UK, it is subject to UK law. When in international airspace, Qatari law will apply, this includes when the aircraft is in the airspace of a non-destination country. Since the aircraft spends more time in Qatar than the UK, Qatari law applies for more of the time than UK law. Nevertheless, UK law is still the applicable law in relation to those acts carried out in the UK. Likewise, the law of other states of destination countries will also be engaged. The parties took divergent views of Qatari law and procedure and how a Qatari court would go about dealing with foreign law. However, Justice Birss was not satisfied that that the courts of Qatar were not capable of dealing with and applying foreign law appropriately in a case which required it.
4 Factors affecting convenience or expense
The dispute about how the Oryx One system or the Oryx One Play application operate will require witnesses based in Qatar, and some documents produced which are in Qatar. However, Justice Birss stated, that this is not a complicated issue, it is merely a simple question of when and how users access the system. Equally, there may be evidence from witnesses based in the UK. If infringement is established, both QA and PRS are likely to want to call evidence about contracts and licensing. Therefore, for whichever court hears the matter, there will be a need to translate into or out of English or Arabic.

Conclusion

In sum, Birss noted that a large number of states laws are relevant to this dispute, whilst it may not be necessary to examine every single one of those laws distinctly, whichever court handles the case will be required to examine laws other than its own. 
A major part of QA’s argument at stage 1 was that a factor strongly favouring Qatar as the natural forum was that Qatari law will apply to the vast majority of the acts complained of and many more than those to which UK law will apply. It was accepted that in terms of the amount of time, or the number of plays of a work, Qatari law will apply to many more of those instances than UK law. 
However, the case is not a Qatari copyright dispute in which the events in and law of the UK and other countries are a kind of ancillary aspect. Every non-domestic flight engages the copyright laws of at least two states. 

The case is really a global copyright dispute between a UK holder of those global rights and a Qatari user of the protected content who is using it all over the world. The dispute has a connection to every state to and from which QA flies planes. [69].

The dispute has more of a real connection with the UK and Qatar than it does with any other state. As between the two, the fact that a higher share of any damages may be due for acts to which Qatari law is applicable than those for which UK law is applicable does not make Qatar clearly and distinctly the forum with which the dispute has the most real and substantial connection.
Therefore, Justice Birss rejected QA’s case on forum non conveniens. As such, the application by the defendant, Qatar Airways, to stay the claim of worldwide infringement of copyright was dismissed. Subject to any appeal, the case now proceeds to trial. 

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