Hasbro Consumer Products Licensing Limited & Anor v Cong Ty Tnhh Dau Tu Cong Nghe Va Dich Vu Sconnect Viet Nam & Ors

On summary judgment, a party has no real prospect of success where its case consists of unsupported assertions and the evidence establishes the relevant elements of liability. Copyright in a sound recording protects the recording itself and does not require creative originality. Indirect copying is sufficient, including copying of a recognisable sample or part. Communication to the public requires targeting, assessed multifactorially. Where foreign law is pleaded but not proved, the presumption of similarity may apply if fair and reasonable, particularly where international harmonisation and treaty protections provide a sound basis. Summary judgment may determine a discrete claim where the evidence is complete enough and there is no compelling reason for a trial.

The claimants alleged infringement of copyright in separately recorded sound clips used in the Peppa Pig series. They alleged that the defendants had copied those clips indirectly into Wolfoo videos and communicated the videos to the public through YouTube.

The claimants applied for summary judgment against the first defendant and the fourth defendant, the latter being alleged to have directed the first defendant’s activities. The defendants did not attend or arrange representation at the hearing but relied on written submissions, evidence and their Amended Defence. The central issues were foreign law, subsistence and ownership of copyright, copying, communication to the public, limitation, and the fourth defendant’s accessory liability.

1. Summary judgment. The court applied the principles summarised in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch). The defendants’ unsupported suggestions about evidence that might emerge at trial did not establish a realistic prospect of success or a compelling reason for a trial.
2. Foreign law. The court accepted that the claims were governed by the law of the places of infringement, but applied the presumption of similarity discussed in FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45. The United Kingdom’s historical harmonisation with EU copyright law and the relevant international treaties provided a fair and reasonable basis for the presumption. The defendants had identified no material difference with sufficient conviction.
3. Sound recordings. Copyright protected the recording itself. No creative originality was required. The claimants’ evidence established that the Audio Clips were separate recordings, that the relevant production companies had made the necessary arrangements, and that the claimants owned the copyright.
4. Copying. The spectrographic evidence established extensive indirect copying. Under the Copyright, Designs and Patents Act 1988 and the applicable EU and treaty framework, liability did not depend on knowledge. Copying in whole or in part was sufficient, and a recognisable sample could infringe. The claimants obtained judgment to the extent of the confirmed matches identified by Mr Weir.
5. Communication and targeting. Communication to the public did not require actual receipt or downloading. Targeting was a multifactorial question. The defendants’ substantial United Kingdom and worldwide viewing figures, together with the available territorial controls, established targeting and left no realistic prospect of defending the claim.
6. Liability and relief. Judgment was entered against the first defendant for the confirmed copying and communication infringements. The court could not determine at summary judgment that the fourth defendant had no real prospect of defeating accessory liability for pre-issue conduct. Judgment was entered against him for post-issue infringements, which he had directed and authorised with knowledge. A consequentials hearing would determine final relief, including injunctions.