Phonographic Performance (Ireland) Ltd v Foyle

JudgeMr Justice David Keane
Judgment Date03 December 2015
Neutral Citation[2015] IEHC 778
Docket Number[2009 No. 6889P]
CourtHigh Court
Date03 December 2015

[2015] IEHC 778


Keane J.

[2009 No. 6889P]


Intellectual Property – The Copyright Act 1963 – The Copyright and related Rights Act 2000 Infringement of copyright – Claim for damages – Non suit

Facts: Following the conclusion of the plaintiff's case seeking against the defendants, the second named defendant had now filed an application for non-suit alleging that there was insufficient evidence to make out a claim of damages against him. The plaintiff alleged infringement of copyright in the sound recordings that were played in a nightclub of which the second named defendant and the first named defendant were the directors. The plaintiff contended the defendants were jointly and severally liable as joint tortfeasors.

Mr. Justice David Keane granted an order for striking out the plaintiff's claim as against the second named defendant on an application for non-suit. The Court held that a director of the company would be liable as joint tortfeasor with the company only if he intended and procured and shared a common design that the infringement took place and not while exercising the duties that were entrusted to him by the company under its constitution. The Court found that there was no evidence that the second named defendant had any role in the playing of the alleged sound recordings in the nightclub in collusion with the first and the second named defendants. The Court, however, observed that though signing of the cheques as fair payment for exercise of a license of right to play sound recordings in public exceeded the scope of duty of a director of a company, yet it could not be inferred that it would make the second named defendant liable for the tort of infringement. The Court opined that in order to determine that there was an authorisation of copyright infringement, a very high threshold had to be crossed by the plaintiff, which the plaintiff had failed to do in the present case.

Judgment of Mr Justice David Keane delivered on the 3rd December 2015

This judgment concerns an application for a non-suit, brought on behalf of the second-named defendant at the conclusion of the plaintiff's case during the trial of the action.


I use the term ‘non-suit’ in accordance with its current (and only extant) meaning, that is, to signify an application for a direction from the Court dismissing an action at the conclusion of the plaintiff's case on the basis that the evidence adduced is insufficient to make out the plaintiff's claim or claims against the relevant defendant(s). As the judgment of Clarke J. in Moorview Developments Ltd v. First Active plc [2010] IEHC 34 makes clear, the old common law right to a ‘non-suit’, whereby a plaintiff could abandon his claim at his own election and without rendering the underlying dispute between the parties res judicata, has been abolished and the rules of court governing the ‘discontinuance’ or ‘withdrawal’ of an action by a plaintiff, currently embodied in Order 26 of the Rules of the Superior Courts, now represent a complete and exhaustive code governing a plaintiff's procedural entitlements in that regard.

The plaintiff's claims

The proceedings concern a claim for damages brought by the plaintiff, Phonographic Performance (Ireland) Ltd (‘PPI’), arising out of the alleged infringement of the copyright in sound recordings that were played at premises known as the Savoy Nightclub and Theatre (‘the Savoy nightclub’) located on Patrick Street in Cork City. It is PPI's case that the third named defendant, Southlinch Theatres Limited (‘Southlinch’), was the licence holder of the intoxicating liquor licence attached to the Savoy nightclub and that the first named defendant, Mr. Foyle, and the second named defendant, Mr Bourke, were directors of Southlinch at all material times. PPI pleads that each of the three defendants, whether solely or jointly, owned and managed, or directed and controlled the operation of, the Savoy nightclub at all material times.


In its statement of claim, PPI alleges that, on a date unknown prior to the 1st January 2001, each of the defendants, acting jointly or singly, infringed PPI's copyright in certain sound recordings licensed or assigned to it, by causing those recordings to be heard in public without either obtaining a licence to do so from PPI or paying equitable remuneration to it in accordance with the terms of s. 17(4)(b) of the Copyright Act 1963 (‘the 1963 Act’). While the statement of claim also includes a recital that the defendants provided an undertaking, as envisaged under s. 17(5)(b), to pay the relevant remuneration as determined by the Controller of Industrial and Commercial Property, that aspect of the claim was expressly withdrawn at trial as having been included in that pleading in error. PPI further alleges that, since the 1st January 2001, each of the defendants, jointly or singly, or by their respective servants or agents, has infringed PPI's copyright in those recordings by breaching the exclusive right of PPI, under s. 37(1)(b) of the Copyright and Related Rights Act 2000 (‘the 2000 Act’), to undertake to make available to the public, or authorise others to make available to the public, the works contained in those recordings. The 1st January 2001 was the appointed date under the Copyright and Related Rights Act 2000 (Commencement) Order 2000 ( S.I. No. 4040/2000), upon which the relevant provisions of the 2000 Act came into effect. For ease of reference, from now on I will refer to the claims just described as ‘the infringement claims.’


In the alternative, PPI alleges that, jointly or singly, the defendants wrongly and unlawfully authorised the copyright infringement already alleged. I will refer to this as the ‘authorisation of infringement claim.’


In the further alternative, PPI pleads that Mr Foyle and Mr Bourke are joint tortfeasors with Southlinch (presumably, in respect of the infringement claims) on one or more of the following grounds: that Southlinch was the agent of Mr Foyle and Mr Bourke; that Mr Foyle and Mr Bourke procured or induced the relevant acts or omissions on the part of Southlinch; and that the relevant acts and omissions by Southlinch were committed with the consent, connivance or approval of Mr Foyle and Mr Bourke, or through their neglect, in circumstances where the former was under the control of the latter and was accustomed to acting under their instructions and directions. These, I shall refer to as the ‘joint tortfeasor claims.’


Finally, PPI pleads that the defendants are each culpable in conspiracy (again presumably, by reference to an alleged agreement to carry out the acts of copyright infringement already alleged). I will refer to these as the ‘conspiracy’ claims.

Status of PPI

PPI pleads that it is a company limited by guarantee, which holds, by reason of exclusive licences or assignments of subsisting copyright, the exclusive right in the State to licence the playing in public of sound recordings comprising the vast bulk of the modern sound recording repertoire. PPI further pleads that it is a ‘licensing body’ within the meaning of that term under the 2000 Act, and that it holds a certificate to that effect issued pursuant to s. 175 (8) of that Act by the Controller of Patents, Designs and Trade Marks (‘the Controller’). None of those matters has been put in issue by any of the defendants in these proceedings.

Reliefs claimed

The PPI claims judgment against the defendants, jointly and severally, in the sum of €50,367.44 or an award of damages in that amount. The figure has been particularised in the following way. First, the amounts invoiced by PPI during the years 2000 to 2006 (inclusive) have been added together, providing a total of €116,948.83. For reasons that are unclear, no invoices appear to have been raised in the year 2004. Second, payments actually made during the relevant period, totalling €66,581.39, have been deducted, leaving the figure already stated. No issue has been taken on behalf of any of the defendants with the calculation of that figure.


While PPI has pleaded a claim of continuing copyright infringement by the defendants and a claim to additional, aggravated or exemplary damages in respect of the alleged copyright infringement by the defendants generally, none of these claims was pressed at trial. Nor was the PPI's claim for an injunction restraining the continuing infringement of its copyright, in circumstances where it appears to be common case that the Savoy nightclub no longer operates.

Commencement of the proceedings

The plenary summons in this action issued on the 28th of July 2009 and a memorandum of appearance was entered on behalf of all three defendants on the 2nd October 2009. As PPI commenced the action in its capacity as exclusive licensee of the copyright entitlements of others, under s. 136(1) of the 2000 Act it was obliged to seek the leave of the Court to proceed further without joining the copyright owners. With the consent of the defendants, Murphy J. made an Order on the 2nd November 2009 granting that leave, after which the statement of claim already described was delivered on the 19th November 2009.

Position of Southlinch

On consent between the relevant parties, by Order of Murphy J. made on the 22nd November 2010, PPI obtained a judgment in default of defence against Southlinch, subject to the later assessment of damages by the Court.


At the trial of the present action, the plaintiff produced, without objection, a copy of the Form B1 Annual Return of Southlinch to the Companies Registration Offices for the financial year from the 1st January to the 31st December 2006 and of both the Abridged Financial Statements and the Financial Statements of the...

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