Warner Music UK Limited & Anor v Tunein Inc

Extended disclosure in a copyright damages inquiry must be directed to genuine Issues for Disclosure and must remain reasonable and proportionate. Identifying those issues is not a mechanical exercise based solely on the pleadings. Where comparable licences may materially inform the assessment of damages, focused disclosure may be ordered even though a party has not yet identified particular licences or services. Model C requests must nevertheless specify particular documents or narrow classes of documents. Broad requests for all potentially comparable licences, communications and royalty records are impermissible where they would amount to a disproportionate Model D or Model E exercise. Questions of control over third-party documents should generally be determined after searches and Disclosure Certificates, rather than prejudged.

The claimants, major record companies, brought copyright infringement proceedings against TuneIn, an online radio aggregation service. Liability was determined in the claimants’ favour after a split trial, and the proceedings proceeded to an inquiry as to damages. The Court of Appeal upheld the liability judgment subject to one qualification: [2021] EWCA Civ 441. The present judgment concerned disputes at the second case management conference about disclosure of station data, licensing records, PPL documents and comparable licences. The central issues were whether particular categories of documents were within the claimants’ control, and whether the proposed Issues for Disclosure and Model C requests were necessary, reasonable and proportionate.

1. Control of PPL documents. It was premature and unnecessary to determine generally whether the claimants controlled documents held by PPL. Any such determination before searches and Disclosure Certificates would prejudge the issue. The specific requests were therefore to be assessed by reference to reasonableness and proportionality.
2. Issue 1. Disclosure concerning stations indexed on TuneIn’s service was necessary and proportionate. TuneIn’s searches could be confined to data extracted from its MySQL and Redshift databases, but the searches were not to be limited to listening activity originating in the UK. Data showing earlier listening in other jurisdictions could assist in identifying when stations were first indexed. An open-ended search for all data and emails since 2011 would be disproportionate. The claimants were to provide a focused list of stations licensed by or on their behalf for reception in the UK. The proposed exclusion of permissions concerning the making available right was rejected. Requests for reciprocal agreements and royalty reports were insufficiently focused and disproportionate.
3. Issue 2. Disclosure of PPL webcaster and simulcaster rates was necessary, reasonable and proportionate. Model B was appropriate for both parties. The Court would not permit tactical horse-trading over the inclusion of Issues for Disclosure.
4. Issues 2A and 2B. Comparability of licences was a key issue in dispute under Practice Direction 57AD. Focused disclosure could therefore be ordered even though TuneIn had not yet pleaded reliance on particular services or licences. However, the proposed requests for all potentially comparable licences, related agreements, communications, invoices and royalty statements were too wide and unclear for Model C. The parties were directed to liaise on narrower requests and, failing agreement, to provide a concise composite document for determination.

• Court of Appeal: The liability judgment was upheld subject to one aspect of liability concerning communication to the public by TuneIn Radio Pro with the recording function enabled: [2021] EWCA Civ 441.
• High Court: The present judgment determined disclosure disputes arising in the subsequent damages inquiry.