Copyright - Performing Right Society Ltd v Qatar Airways Group QCS

Konstantin von Wedelstaedt
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or GFDL 1.2 (http://www.gnu.org/licenses/old-licenses/fdl-1.2.html)]

















Jane Lambert

Chancery Division (Mr Justice Birss) Performing Right Society Ltd v Qatar Airways Group QCS [2020] EWHC 1872 (Ch) (17 July 2020)

This was an application by the defendant airline to stay an action for copyright infringement on grounds of forum non conveniens and case management.  The action has been brought by the Performing Right Society which alleges that the inflight entertainment systems of the defendant's aircraft infringe the copyright laws of the countries in which those aircraft are present at any one time.   The application came on before Mr Justice Birss on 18 June 2020.   He handed down his judgment in Performing Right Society Ltd v Qatar Airways Group QCS [2020] EWHC 1872 on 17 July 2020.

Referring to Lord Goff's speech in Spiliada Maritime Corp v Cansulex Ltd [1986] 3 WLR 972, [1987] 1 FTLR 103, [1986] UKHL 10, [1986] 3 All ER 843, [1987] 1 Lloyd's Rep 1, [1987] ECC 168, [1987] AC 460, Mr Justice Birss held that there was a two-stage test to be applied:

"(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?"

In deciding the first question, the learned judge considered the following issues:

"i) the personal connections the parties have to the countries in question;
ii) factual connections which the events relevant to the claim have with the countries;
iii) applicable law;
iv) factors affecting convenience or expense such as the location of witnesses or documents."

Issue (i) The PRS has a much closer connection with England than with any other country. It was incorporated in England and all but two of its 480 employees work here.  English is the language in which it conducts business,  Many of the witnesses that it intends to call are based here.  Qatar Airways is incorporated and headquartered in Qatar but it has many operations in the UK.  Many of its staff are fluent English speakers and its principal in-house legal adviser is a graduate of the University of Cambridge and an English solicitor.  His lordship concluded at paragraph [42] of his judgment: "Overall, each entity, PRS and QA, has a close and genuine link to its home state, the UK and Qatar respectively. It is fair to say that QA has rather stronger links to the UK than PRS has to Qatar but the degree of that difference is small."

Issue (ii)    As the alleged wrongdoing is alleged to take place on airport aprons and in the air, Qatar Airways pointed out that nearly all its flights take off or land in Dohar. Only 3% originate or terminate from the UK.  The judge said at [44]: "Plainly therefore the aircraft spend more time in Qatar than they do in the UK. Nevertheless to an appreciable degree relevant acts do take place in the UK. Moreover a great deal of the activity in issue takes place in other countries, neither Qatar nor the UK."

Issue (iii)   The judge found that Qatari copyright law could resolve the dispute.  However, all proceedings would be in Arabic and all documents would have to be translated into that language. Some costs could be recovered in Qatari proceedings but awards were lower than in England. It was not clear how far the Qatari courts would apply foreign statutes and case .law.  Qatar, unlike England, did not have specialist IP judges.

Issue (iv)   Most of PRS's experts and witnesses of fact were in the UK  whereas Qatar Airways's were in Dohar. Documents would have to be translated into English or Arabic wherever the litigation took place.

Mr Justice Birss considered all those factors between paragraphs [65] and [69]:

"[65] Overall in my judgment the position is clear. In terms of the personal connections between the parties, the case has real connections to the UK and real connections to Qatar. In terms of the factual events and also the location of witnesses and documents, the best that can be said is again that there are connections to both places. Aside from the point on applicable law, which is addressed below, I do not agree that the connections to Qatar in that respect are significantly stronger than those to the UK.
[66] This dispute is concerned with events which have taken place in a large number of countries and for which the applicable law of a large number of states is relevant. I doubt whether in the end it will prove necessary to examine every single one of those laws distinctly, but whichever court handles the case will be required to examine laws other than its own.
[67] The debates about the Qatari legal system, its approach to copyright and to evidence of foreign law are not relevant at this stage.
[68] So far, none of these factors supports a case that Qatar is clearly the natural forum for this dispute.
[69] The final point is the following. 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. I accept 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 that is not the whole story. 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 flight (save for domestic ones) 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. Nevertheless the dispute does clearly have a more real connection with the UK and Qatar than it does with any other state. However 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."

At paragraph [70], he rejected the airline's case on forum non conveniens.

Having decided the first question there was no need to consider the second. However, he was not persuaded that justice would not be done in Qatar.  Had he decided that Qatar was the appropriate form he would have stayed then action.

The airline argued that there were good case management reasons why this case should not be tried in London.  This was a claim against a Qatari defendant on issues of non-UK legal issues. The judge did not see that as a problem.  Arrangements could be made for handling the litigation proportionately such as taking representative jurisdictions.

After judgment had been circulated in draft, the defendant invited the judge to delay handing down judgment until after the Supreme Court delivers judgment in Unwired Planet v HuaweiThe PRS opposed delay on the basis that nothing in the Supreme Court's judgment was likely to affect the present case.  Mr Justice Birss, who tried Unwired Planet International Ltd v Huawei Technologies Co. Ltd and another [2017] EWHC 711 (Pat) agreed.

There is in Qatar an English speaking common law court with eminent judges from the UK and other common law countries.   It is curious that neither side mentioned that jurisdiction. There are similar courts in Dubai, Abu Dhabi and Nur-Sultan in Kazakhstan.  The Dubai International Financial Centre has recently enacted its own intellectual property law which I discussed in Introduction to, and Overview of, the New DIFC Intellectual Property Law 11 Dec 2019. 

Anyone wishing to discuss this topic may call my clerk on +44(0)7986 948267 or send me a message through my contact page while this emergency continues, I shall gladly respond by phone, VoIP or email.

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