The Performing Right Society Ltd issued proceedings against Qatar Airways Group QCSC for global copyright infringement in relation to its inflight entertainment system and two apps, through which Qatar Airways provides entertainment services and access to a wide range of content, including music, films, TV shows and games.

PRS claims that the content provided through Qatar Airways’ services includes many musical works to which it is the assignee of the worldwide performing rights and that by making this content available to its passengers without a licence from PRS, Qatar Airways is infringing those rights. It seeks injunctive relief to restrain such infringement and damages.

The parties have agreed to a preliminary issues trial to consider various issues of principle under UK and Qatari copyright law. The two performing rights in issue under UK law are the public performance right under s 19 of the Copyright Designs and Patents Act 1988, and the communication to the public right under s 20.

The primary issue between the parties at the case and costs management hearing for the preliminary issues trial was the extent of disclosure. PRS contended that an order for Extended Disclosure under the Disclosure Pilot Scheme (Practice Direction 51U) should be made. Qatar Airways contended, in effect, that there should be no disclosure.

Arguments of the parties

PRS contended that Extended Disclosure was required to enable the matters to be tried as preliminary issues to be fairly determined. PRS stressed, in particular, that consideration of whether there is an infringement of the communication to the public right requires a fact-sensitive, individualised assessment of Qatar Airways’ inflight entertainment systems as a whole, for which purpose the court needed to have sufficient information about the nature and operation of those services. That information was solely within Qatar Airways’ knowledge.

Qatar Airways submitted that none of the items listed within the agreed list of Issues for Disclosure were genuinely key matters in dispute which needed to be determined by reference to contemporaneous documents in order for there to be a fair resolution of proceedings in accordance with PD51U paragraph 7.3. It said that all the issues to be determined at the preliminary issues trial were questions as to the application of the law to the admitted facts and could fairly be tried based on those admitted facts.

Further, although there were some factual disputes between the parties relating to passengers’ mode and means of access to the apps and the range of content made available by them, Qatar Airways said that PRS was not asserting any positive case by way of reply to Qatar Airways’ defence, and the mere joinder of issues on such matters was not itself sufficient to trigger Extended Disclosure.

Qatar Airways also said that PRS’s request for Extended Disclosure was disproportionate and would involve a very extensive document search and management exercise at an estimated cost of nearly £250,000.

Decision

Referring to PD51U and to McParland & Partners Ltd v Whitehead [2020] EWHC 298 (Ch), Deputy Master Francis did not accept that the absence of a reply to defence was any real indicator of the extent of the factual disputes in issue. Further, the parties had agreed directions in relation to witness statements at an estimated cost of around £150,000, which was an indication that both sides anticipated significant disputes of fact to be determined at the preliminary issues trial, encompassing items in the list of Issues for Disclosure.

As for proportionality, Deputy Master Francis was initially concerned at the extent of the exercise that Qatar Airways would have to undertake, but noted that this was sa dispute between two very large commercial entities and that the issues in dispute were complex and of very great importance to both parties. Therefore, he was satisfied that if it was otherwise appropriate to make the order for Extended Disclosure, he should not be deterred by the extent of that exercise or the costs of it.

Considering the Issues in turn, Deputy Master Francis concluded that it was appropriate to make an order for Extended Disclosure under Model C for the preliminary issues trial, albeit it with some limitations. (Performing Right Society Ltd v Qatar Airways Group QCSC [2021] EWHC 869 (Ch) (13 April 2021) — to read the judgment in full, click here) Note: Wiggin is instructed by the Claimant in this case