Knowledge & News

Fight or Flight

23 July 2020

The High Court has ruled that a major copyright infringement claim brought by the Performing Right Society for Music (PRS) against Qatar Airways should be heard in the English courts.

The PRS is seeking damages from the state-owned Qatari airline for using music from its members’ repertoire without a licence in place. The airline operates over 200,000 flights a year and includes music as part of its in-flight entertainment services. However, it has no arrangement in place to remunerate writers, composers and publishers of musical works for the use of their intellectual property. Airlines are usually granted licences to use copyright material by collective copyright management organisations (CMOs) based in the same country; however, there is no such organisation based in Qatar.

The PRS sought to license Qatar Airways through customary channels but received no response from the airline. In December 2019, the PRS initiated proceedings against Qatar Airways in the UK, seeking a declaration that the airline had infringed worldwide performing rights, an injunction to prevent further infringement, and an inquiry for corresponding damages. Qatar Airways argued that, because its aircraft spent more time in Qatar than they did in the UK, Qatari law would apply for the majority of the alleged infringement so the appropriate forum for the proceedings was in Qatar.

On 17 July 2020, Mr Justice Birss handed down his jurisdictional judgment, based on the application of the well-established principles known as the ‘Spiliada test’ (set out in Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] AC 460). Judge Birss noted that the case is “really a global copyright dispute between a UK holder of those global rights and a Qatari user of the protected content, which is using it all over the world”, but agreed with the PRS’s position that jurisdiction of the English court had been properly established.

Sami Valkonen, PRS’s Chief Legal Officer, said in a statement “Today’s ruling is an important first step in our unyielding quest to correct this long-standing injustice and ensure fair compensation for our members from these airlines. We hope to resolve this matter as efficiently as possible on behalf of our members.”

Subject to any appeal, the case will now proceed to a trial on liability, unless Qatar Airways takes the necessary licence to cover the use of PRS members’ repertoire, both retrospectively and in future.

The PRS has sought to license various Gulf-based airlines for years, and now seeks to ensure that Qatar Airways and other unlicensed airlines will take up the necessary licences once air travel resumes after the pandemic.

This on-going dispute highlights the importance of ensuring that appropriate arrangements are in place, so that rights holders are remunerated for the use of their creative content, thereby minimising potential legal costs to resolve the position at a future date.

Authors

Claire Chalmers

Claire Chalmers Associate London (UK) Solicitor (UK) (Registered with the SRA as Louise Chalmers Clare)

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