Warner Music UK Ltd & Anor v Tunein Inc

Where liability for widespread intellectual property infringement is established by representative samples, relief may extend generally beyond those samples if the findings do not depend on features peculiar to them. An inquiry as to damages is not confined to sampled instances; unresolved issues may be addressed where justice and convenience require it.

An injunction is discretionary. Although a general injunction commonly follows established infringement, the court must assess effectiveness, proportionality and the fair balance between intellectual property rights and fundamental rights. A defendant responsible for primary infringement cannot generally transfer rights-clearance obligations to rights-holders or rely on a limited notice-and-takedown or geo-blocking regime.

The claimants obtained judgment for copyright infringement in the main proceedings, concerning the defendant’s streaming of music from internet radio stations. Liability had been tried by reference to sample stations in four categories. The main judgment found infringement in Categories 2, 3 and 4, but not generally in Category 1.

This consequential judgment determined whether injunctive relief and the damages inquiry should be limited to the samples, the appropriate terms of any injunction, and the parties’ costs under CPR rule 44.2.

1. Scope of relief. The sample-based case-management order did not confine the consequences of the findings to the sampled stations. The findings did not turn on individual sound recordings, distinctions between stations within the categories, or an unexamined fifth category. General relief was therefore justified.
2. Damages inquiry. An inquiry may be general even where liability was established through samples. If further instances raise issues not decided at trial, those issues may be managed within the inquiry where justice and convenience require it. A separate liability trial remains available if necessary. The court applied the approach identified in Fabio Perini v LPC [2012] EWHC 911 (Ch).
3. Injunction. An injunction is equitable and discretionary. The usual grant of a general injunction is not invariable. The court had to consider proportionality and the fair balance between copyright protection and rights including freedom of expression, freedom of business, privacy and access to information. The principles discussed in EMI Records v British Sky Broadcasting [2013] EWHC 379 (Ch) and Interflora v Marks & Spencer [2013] EWHC 1484 (Ch) were applied.
4. A general injunction limited to sample stations would not be effective, proportionate or dissuasive and would not reflect the scale of infringement. The defendant was a primary infringer, not an internet service provider. Its proposed notice-and-takedown and limited geo-blocking approach could not transfer the burden of rights clearance to the claimants. The defendant had to take positive steps to avoid infringement.
5. Any general injunction required reasonable clarity about the claimants’ repertoire. The appropriate model was a defined repertoire supported by a searchable, reasonably current database and answers to reasonable enquiries, as in collecting-society proceedings. The final injunction was granted in general terms, with that repertoire provision, and stayed pending appeal.
6. Costs. The claimants were the successful party, but CPR rule 44.2 permitted the court to consider partial success, the relative economic importance of issues and conduct. Category 1 was commercially significant, and settlement preconditions were relevant conduct. A 25% deduction from the claimants’ costs was ordered.

First-instance consequential judgment following the main judgment in [2019] EWHC 2923 (Ch). Permission to appeal was granted, and the injunction was stayed pending appeal.