Court grants non-suit in Cork nightclub music copyright case

About this case:

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The court found in favour of the second defendant, Mr Jonathan Bourke, in the case brought by Phonographic Performance (Ireland) Ltd (“PPI”).

The case was also brought against Mr Eoin Foyle and Southlinch Theatres Ltd, with PPI alleging that Southlinch was the intoxicating liquor license holder for the Savoy, and that Mr Foyle and Mr Bourke were directors of Southlinch at all material times.

PPI claimed that all three defendants, acting singly or jointly, infringed PPI’s copyright in certain sound recordings, in accordance with the terms of s. 37(1)(b) of the Copyright and Related Rights Act 2000.

They claimed judgment in the sum of €50,367.44 or an award of damages in that amount, constituting the amount invoiced by PPI over the relevant period (€116,948.83), with payments made during the relevant period (€66,581.39) deducted.

On the conclusion of PPI’s case, Mr Bourke made an application for non-suit, arguing that the evidence was insufficient to make out PPI’s claim against him.

Delivering the judgment, Mr Justice David Keane considered whether PPI had made a prima facie case on any of the four alternative grounds of liability it had asserted against Mr Bourke.

These were 1) that Mr Bourke infringed its copyright; 2) that Mr Bourke authorised the infringement of its copyright; 3) that Mr Bourke was a joint tortfeasor with Southlinch or Mr Foyle, or both, in respect of the breach of PPI’s copyright; or 4) that Mr Bourke conspired to infringe copyright, either with Southlinch or Mr Foyle, or both.

With regards to the the first claim, PPI relied on s.37 of the Copyright and Related Rights Act 2000, which states that: “The copyright in a work is infringed by a person who without the licence of the copyright owner undertakes, or authorises another to undertake, any of the acts restricted by copyright.”

In relation to the term “undertake”, PPI argued that it should capture not only the physical playing of sound, but also the putting in place and carrying out of arrangements by which the recordings would be played.

In the second claim, PPI cited the case of Twentieth Century Fox Film Corp. v. Newzbin Ltd F.S.R. 21, which considers “authorise” as meaning “sanction, approve and countenance”.

In relation to the claim of “joint tortfeasor”, PPI alleged that Southlinch was the agent of Mr Foyle and Mr Bourke; that Mr Foyle and Mr Bourke procured or induced the relevant acts or omissions on the part of Southlinch; and that the relevant acts and omissions by Southlinch were committed with the consent, connivance or approval of Mr Foyle and Mr Bourke, or through their neglect, in circumstances where the former was under the control of the latter and was accustomed to acting under their instructions and directions.

PPI noted the principles followed in Tommy Hilfiger Europe Inc. v. McGarry IEHC 66, which found that someone is a joint tortfeasor when he “intends and procures and shares a common design that the infringement takes place.”

In terms of the factual evidence, PPI cited the fact that Mr Bourke had signed cheques on behalf of Soutlinch in respect of previous payments for license rights. They argued that this was evidence that Mr Bourke was involving himself in the playing of sound recordings by Southlinch.

However, the Judge found that such evidence was hard to reconcile with PPI’s submission that this amounted to Mr Bourke procuring or inducing the infringement, or that he joined in concerted action with Southlinch in order to infringe, or that he ordered the commission of the infringement.

Second, PPI noted that Mr Bourke had received a letter asserting his personal liability to PPI for a sum similar to that now claimed, which he had not replied to or denied, and that this could be taken as an inference of liability.

However, the Judge found that Mr Bourke had since delivered a comprehensive denial of liability within his defence.

Fourth, PPI submitted that Mr Bourke had sworn an affidavit of discovery claiming that he had no documents relating to “accounts and records concerning events, cover charges and attendances at the Savoy nightclub; records pertaining to the operation of the Savoy nightclub; documents evidencing the playing of sound recordings at the Savoy nightclub; and documents comprising promotional or publicity materials for the Savoy nightclub.”

PPI submitted that such a claim was implausible, due to his role as a director of Southlinch. However, the Judge found that this could not be considered evidence that Mr Bourke had authorised or engaged in the acts alleged against him.

Finally, PPI noted that at the commencement of the trial, Counsel on behalf of Mr Foyle had indicated that Mr Foyle would not be opposing PPI’s claim. However, once again the Judge found that such evidence did not amount to support for the claims made against Mr Bourke.

The Court noted that in the present case, the primary infringer of the copyright would be not Mr Bourke, but the operator of the equipment, citing Copinger and Skone James on Copyright 16th ed, 2011. Further, there was no evidence to suggest a conspiracy to infringe copyright.

It was therefore found that there was no evidence to support either the first, or the fourth, alleged mode of liability claimed by PPI.

The Court therefore considered the second and third claims, namely, whether Mr Bourke had authorised the copyright infringement, or acted as a joint tortfeasor.

It was noted that the facts of the case did not fit easily within the parameters of the test for authorisation of infringement as developed in the case law, including cases such as Twentieth Century Film Corp v Newzbin Ltd; Falcon v. Famous Players Film Co 2 K.B. 474; Moorhouse v. University of New South Wales R.P.C. 151; and RCA Corporation v. John Fairfax & Sons Ltd RPC 91.

The Court noted the qualification that “authorisation can only come from somebody having or purporting to have authority” and “means the grant or purported grant of the right to do the act complained of.”

The Judge noted the importance of “control” in these cases, and found that he could not accept that “by signing a small number of cheques on behalf of Southlinch…Mr Bourke could be said to be exerting control over Southlinch in respect of its infringement of copyright.”

Nor could his role as a director be sufficient to establish that he controlled Soutlinch, and therefore “sanctioned, approved or countenanced its infringement of copyright through the exertion of that control.”

In relation the claim that Mr Bourke was a joint tortfeasor, the Judge cited Tommy Hilfiger Europe Inc v. McGarry IEHC 66, which found that the balance between the principle that a company is separate from its directors, and the principle that directors should be answerable for tortious acts, was to be struck on the facts of each case.

The Judge noted that in this case, the matrix of facts surrounding the claim, the absolute confusion as to who was actually invoking a license of right to play, and the complex nature of the exact claims brought by PPI, were all relevant facts to the case.

He found that on the facts of the present case, “there is no evidence in this case that Mr Bourke directed or procured the infringement of copyright by the company, or that he engaged in a common design with any other person to that end”.