Performing Right Society Ltd v Qatar Airways Group QCSC

Extended disclosure must be directed to the key factual issues which require contemporaneous documents for fair resolution. It must also be reasonable and proportionate, having regard to the nature and complexity of the case, the importance of the relief sought, the likely probative value and burden of searching, the parties’ resources, and the need for expedition.

In a copyright claim concerning communication to the public, disclosure may properly address how content is made available, the scope and operation of the relevant services, and whether the services are promoted as a benefit supporting ticket sales. Disclosure directed only to actual access by users, or to unpleaded alternative ways of promoting content, is excessive.

Performing Right Society Limited brought a global copyright infringement claim against Qatar Airways Group Q.C.S.C. concerning musical works made available through the Oryx One inflight entertainment system and associated applications.

The parties agreed that preliminary issues would determine questions under sections 19 and 20 of the Copyright, Designs and Patents Act 1988, alongside corresponding questions under Qatari law. The dispute concerned whether extended disclosure was required for factual matters relating to the applications, available content, promotion of content, and the commercial significance of the services.

The central issue was whether those matters were key issues for disclosure and, if so, what disclosure models were reasonable and proportionate.

1. Applicable principles. The court applied Practice Direction 51U. Extended disclosure must be confined to key issues in dispute which require contemporaneous documents for fair resolution. Search-based disclosure should be ordered only where appropriate, reasonable and proportionate. The requesting party bears the burden of showing that the proposed model satisfies those requirements.
2. Applications and access. The manner and mode by which content was made available through the Oryx One Play app, including the aircraft on which it operated and the devices to which it could be downloaded, were relevant to the individualised assessment required for communication to the public. Model C disclosure was therefore ordered for issues 3 and 4.
3. Range of content. Documents showing the range of content available through the Oryx One Play app and Oryx One app were relevant. Disclosure was ordered under Model C for issues 5 and 6, but requests for usage reports and app data were excluded. Actual access was unnecessary to establish whether works had been made available so that they could be accessed, although it could be relevant to damages.
4. Promotion and optimisation. Model D disclosure was refused for issue 7. Qatar Airways had admitted the particular promotional methods pleaded. Any materially different methods had first to be pleaded by PRS; a search for unpleaded matters would be a fishing expedition.
5. Profit and ticket sales. Disclosure was justified under Model C for issue 9, but limited to outward-facing advertising and promotional material showing whether the inflight entertainment system was promoted as a selling point. Internal and planning documents were disproportionate.
6. Order. Model C disclosure was ordered for issues 3, 4, 5, 6 and 9, subject to the stated limits. The Model D application for issue 7 was dismissed. The parties were directed to agree revised wording and disclosure budgets.