Phonographic Performance Ltd v CGK Trading Ltd & Ors

A person authorises copyright infringement where, having authority to do so, they grant or purport to grant permission for the infringing act. Mere enablement, assistance or encouragement is insufficient. A nightclub manager who engages performers to play at the venue may authorise the performance of whatever music they select, even without choosing or knowing the individual songs. Responsibility for day-to-day supervision, or status as a designated premises supervisor, does not alone establish liability. Liability depends on the person’s actual responsibilities and authority. A blanket authorisation may therefore arise where the manager books performers to play at premises without the necessary copyright licences.

Two copyright claims by Phonographic Performance Limited and Performing Rights Society Limited were tried together against Kerry Ormes, concerning the unlicensed playing of sound recordings and musical works at Miya Nightclub in Chelmsford. The infringements were admitted, but Ms Ormes denied personal liability, contending that her employment was limited to licensing and supervisory responsibilities and that she had no responsibility for selecting or procuring music.

The court considered whether she was the Club’s manager, whether her authority extended to arranging musical performances, and whether she had exercised that authority. Liability of other defendants had already been determined by default judgment or summary judgment.

1. Liability established. Ms Ormes was liable to both claimants for authorising and procuring copyright infringement from 18 November 2014 onwards. Issues of quantum were adjourned.
2. Under sections 16 and 19 of the Copyright, Designs and Patents Act 1988, authorisation is a distinct form of primary liability. It requires the grant or purported grant, express or implied, of the right to perform, show or play the work. Mere enablement, assistance or encouragement is insufficient. Liability may also arise under common-law principles of joint tortfeasance and section 25(1), although the liabilities substantially overlap.
3. Being a designated premises supervisor, or carrying out supervisory functions, does not of itself establish authorisation or procurement. The question is one of fact, including the person’s actual role and responsibilities.
4. On the evidence, Ms Ormes acted as the Club’s manager. Her responsibilities included booking DJs and promoters and passing music lists to them. Those responsibilities extended to authorising and procuring musical performances, notwithstanding that DJs generally selected the particular songs.
5. The authorisation was analogous to the blanket authorisation in Twentieth Century Fox Film Corp v Newzbin Ltd [2010] FSR 21. It was unnecessary for Ms Ormes to know or approve each specific song. By booking performers to play at the venue, she authorised them to perform whatever music they selected. There was no evidence that the performers held licences or were told to obtain them.
6. The court declined to draw an inference from deficiencies in disclosure because the claimants had not sought specific disclosure or non-party disclosure. Ms Ormes’ liability therefore rested on the evidence establishing her managerial role and acts, rather than on an adverse disclosure inference.