Phonographic Performance (Ireland) Ltd v Cody

• Jurisdiction: Ireland
• Court: High Court
• Judge: Keane J.
• Judgment Date: 01 January 1998
• Neutral Citation: 1994 WJSC-HC 3940
• Docket Number: No. 18008P/1990
• Date: 01 January 1998

1994 WJSC-HC 3940

THE HIGH COURT

No. 18008P/1990

PHONOGRAPHIC PERFORMANCE (IRL) LTD v. CODY

BETWEEN

PHONOGRAPHIC PERFORMANCE (IRELAND) LIMITED

PLAINTIFFS

AND

WILLIAM AUSTIN CODY AND PRINCES INVESTMENTS LIMITED

DEFENDANTS

Citations:

COPYRIGHT ACT 1963 S17(4)(b)

COPYRIGHT ACT 1963 S31

COPYRIGHT ACT 1963 S32

RSC O.19 r27

COPYRIGHT ACT 1963 S60(4)

CONSTITUTION ART 40.3.2

CONSTITUTION ART 43.1

COPYRIGHT ACT 1963 S17

COPYRIGHT ACT 1963 S31

PHONOGRAGHIC PERFORMANCE V CONTROLLER OF INDUSTRIAL PROPERTY 1993 1 IR 267

COPYRIGHT (FOREIGN COUNTRIES) (NO 2) ORDER 1978 SI 133/78

UNIVERSAL COPYRIGHT CONVENTION

TREATY OF ROME

RSC O.39 r1

COPYRIGHT ACT 1963 S26

CRONIN V PAUL & ORS 15 ILTR 121

JUDICATURE (IRL) ACT 1877

NORTHRIDGE V O'GRADY & THOMPSON 1940 IJ 19

SHANNON V IRELAND & AG 1984 IR 548

MCGLINCHEY V IRELAND & AG 1990 2 IR 220

Synopsis:

COPYRIGHT

Breach

Plaintiff - Rights - Proof - Music - Recordings - Plaintiff's claim as assignee of copyright in sound recordings - Defendant refused to admit affidavit evidence as proof of assignment - Court granted plaintiff leave to adduce evidence on affidavit - Conditions for grant of such leave - (1990/18008 P - Keane J. - 14/4/94)- [1998] 4 IR 504 - [1994] 2 ILRM 241

|Phonographic Performance (Ireland) Ltd. v. Cody|

EVIDENCE

Production

Method - Affidavit - Court - Leave - Requirement - Plenary hearing of action - Breach of copyright - Conditions for granting leave - (1990/18008 P - Keane J. - 14/4/94) - [1998] 4 IR 504- [1994] 2 ILRM 241

|Phonographic Performance (Ireland) Ltd. v. Cody|

PRACTICE

Action

Trial - Witness - Evidence - Presentation - Method - Exception - Affidavit - Leave of court - Sufficient reason - Breach of copyright alleged - Copyright in sound recording - Proof of assignment to plaintiff - Rules of the Superior Courts, 1986, order 39, r. 1 - (1990/18008 P - Keane J. - 14/4/94) - [1998] 4 IR 504- [1994] 2 ILRM 241

|Phonographic Performance (Ireland) Ltd. v. Cody|

1 JUDGMENT delivered the 14th day of April 1994 by Keane J.

2 The application by the Plaintiffs in this case for certain Interlocutory Orders is part of a long running legal battle between them and a number of persons and firms who operate discotheques, nightclubs and other places of entertainment throughout the country. According to the Plaintiffs, their members are all record companies who issue records to the public in this country in the form of vinyl records, cassette tapes and compact discs. They say that they were established in order to collect revenues inter alia from the public performance and broadcasting of their members' sound recordings in this country and to restrain, and recover damages for, any infringement of the copyright in such recordings. They also say that they are the only body established for that purpose in the State.

3 Under the provisions of the Copyright Act 1963, to which it will be necessary to refer in more detail at a later point, causing a recording to be heard in public without the payment of "equitable remuneration" to the owner of the copyright is an act restricted by the copyright. The Act provides for the resolution of disputes as to what constitutes "equitable remuneration" by the Controller of Industrial and Commercial Property (hereafter "the Controller").

4 The second named Defendant is the owner of The Brandon Hotel in Tralee in which there is a discotheque known as "Spirals". The first named Defendant was at the time the proceedings were instituted the general manager of the hotel and the holder of the intoxicating liquor licence and public music and dance licence in respect of the premises. The Plaintiffs say that the Defendants have been causing sound recordings in respect of which the Plaintiffs are entitled to be paid equitable remuneration to be heard in public at these premises since January 1st, 1984, and that until the 31st December, 1987, they in fact paid the sums sought by the Plaintiffs in respect of such remuneration. They claim, however, that since the latter date, the Defendants have not made any payment to the Plaintiffs, although they have continued to cause the sound recordings to be heard in public at the discotheque. The Plaintiffs claim, accordingly, the following reliefs:-

5 (1) Injunctions restraining the Defendants from causing the sound recordings specified in the proceedings to be played in public without the payment of equitable remuneration to the Plaintiffs;

6 (2) Damages for infringement of copyright, including exemplary damages;

7 (3) If necessary, an account of the damages suffered by the Plaintiffs or an account of the profits accruing to the Defendants.

8 In their Defence, the Defendants plead that the Plaintiffs have refused to enter into any negotiations concerning the extent of any "equitable remuneration" which may be payable to them and have arbitrarily imposed a payment requirement on the Defendants which, they say, is harsh and unreasonable.. In addition, however, they put in issue virtually all the averments in the Statement of Claim delivered on behalf of the Plaintiffs, including the Plaintiffs' claim that copyright exists in respect of the relevant sound recordings and that they are either the owners or exclusive licensees of that copyright. They also say that, if the Plaintiffs are the owners or exclusive licensees of any such copyright, there has been no infringement, since they are willing to pay to the Plaintiffs such equitable remuneration as the Plaintiffs may be entitled to pursuant to the provisions of Section 17(4) (b) of the Copyright Act, 1963.They also say that they are prepared to refer any dispute as to equitable remuneration to the Controller pursuant to Section 31 of the Copyright Act 1963.

9 The Master of the High Court by an Order of 20th July, 1993, ordered the parties to make discovery within ten weeks from the date of the Order. The Plaintiffs' Affidavit of Discovery was sworn on the 1st October, 1993. The Defendants' Affidavit of Discovery was sworn on the 4th February, 1994, i.e., after the time limited by the Master's Order had expired.

10 On the 17th December, 1993, the Plaintiffs' Solicitors wrote to the Defendants' Solicitors asking for their clients' consent to the evidence of certain witnesses being given on Affidavit in the form of draft Affidavits enclosed with that letter. On the 2nd March last, the Plaintiffs served on the Defendants notices requiring the Defendants to admit the facts and documents therein specified without further proof.

11 In the Notice of Motion now before me, which was filed on the 24th January last, the Plaintiffs seek:-

12 (1) An Order dismissing the Defendants' Defence because of their failure to comply with the Order for Discovery;

13 (2) In the alternative to (1), an Order striking out so much of the defence as puts in issue the Plaintiffs' ownership of the copyright;

14 (3) In the alternative to (1) and (2), an Order permitting the Plaintiffs to establish the matters of fact contained in the draft Affidavits specified in the Schedule to the Notice by Affidavit in lieu of oral testimony.

15 As to the first relief sought, I have already noted that the Defendants have now filed an Affidavit of Discovery. Mr. Nesbitt, S.C., however, on behalf of the Plaintiffs, submits that the Defendants' Affidavit is inadequate in that it fails to discover documents which, as he argues, are undoubtedly in existence and are relevant to the issues that arise in these proceedings. These include:-

16 (a) Lists of sound recordings;

17 (b) Accounts showing the level of turnover from admissions and the bar;

18 (c) Documents relating to the purchase or hire of equipment used at the premises for the playing of sound recordings;

19 (d) Documents setting out the arrangements with disc Jockeys and others;

20 (e) A list of receipts relating to the purchase and/or acquisition of copies of the sound recordings on the Defendants' premises.

21 The Plaintiffs also complain that there has been no Affidavit of Discovery by the first named Defendant, the only Affidavit being sworn by one Peter McDermott, the hotel manager of the premises, which they say was clearly sworn on behalf of the second named Defendants. (The first named Defendant has left the employment of the second named Defendants). However, I do not think that this ground of objection was seriously pressed by Mr. Nesbitt.

22 Ms. Fidelma Macken, on behalf of the Defendants, submitted that the material alleged by the Plaintiffs to have been omitted from the Defendants' discovery would only be relevant, if at all, to an issue as to damages or an account of profits. That issue, in turn, would only arise if all the other issues arising on the pleadings were resolved in favour of the Plaintiffs. It would, accordingly, be premature for the Defendants to make discovery of the documents in question at this stage.

23 So far as one of the categories of documents is concerned, i.e., the lists of sound recordings, the Defendants deny that they keep any such lists and this is an issue which it is obviously impossible to resolve on affidavit. It is also clear that, so far as some of the other categories are concerned, they are at best of doubtful relevance to the issues in the Action and some would only become relevant if damages were being assessed. In these circumstances, while it may be that the Plaintiffs at a later stage in the action would be entitled to an Order requiring the Defendants to make further and better discovery, that situation has not yet arisen and, in any event, the application before me is for the more drastic remedy of an Order striking out the Defendants' Defence on the ground that they have failed to comply with the Order for Discovery. I am satisfied that such an Order should not be made.

24 As to the next relief sought, Mr. Nesbitt submitted that the Defendants should not be...