Phonographic Performance Ltd (PPL), issued proceedings against the defendant, Abimbola Balgun t/a Mama Africa, claiming that Mr Balgun had infringed PPL’s copyright in relation to two songs by allowing a DJ to play the songs at private parties held in the restaurant.

PPL applied for summary judgment. A summary judgment application is normally made at a relatively early stage in litigation where the Court determines the case without a trial being required.  When deciding whether to grant summary judgment, the Court had to consider that the defendant had no real prospect of successfully defending the claim and that there was no other compelling reason why the case should be dealt with at trial.  As Mr Balgun failed to attend the summary judgment application hearing, summary judgement was granted against him. 

Mr Balgun applied to have the judgment set aside. The Master declined on the basis that Mr Balgun did not have a good explanation for not attending the hearing and did not have a defence with any real prospect of success.  Mr Balgun appealed the Master’s decision.

At the High Court appeal hearing, Mr Balgun sought to clarify his non-attendance and confirmed that on the date in question, he had to attend another hearing in the family court.  Whilst the High Court Judge agreed that the Master had not fully considered the reason for non-attendance, it was not clear to the Judge why Mr Balgun had not informed the Court in advance.

Although the High Court Judge did observe that the Master had incorrectly applied the test relating to the failure to attend trial, the Judge found that as the Master had not applied the principles too rigidly and the test involved the exercise of the Master’s discretion, there was no difference in the outcome. 

The Judge also considered whether the defence submitted by Mr Balgun had any real prospect of success. Mr Balgun argued that he had not authorised the acts of infringement, since he had no control over what music the DJs chose to play at the private parties.

The Judge found that the relevant act was the authorisation of the playing of music in public and not the authorisation of specific songs that infringe the copyright.  Mr Balgun argued that this decision was at odds with the decision in CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] 1 AC 1013. The Judge distinguished the case and found that Amstrad had no control over what was done with the recording equipment after its sale, whereas Mr Balgun had full control over what happened in his restaurant.  The Judge added that the DJs had not exceeded the authority given to them to play music at private parties held in the restaurant.

The High Court Judge therefore held that there were no real prospects that Mr Balgun’s defence would succeed and his application to have judgment set aside was dismissed. 

The case is a reminder that owners of premises where music is played need to ensure they obtain licences from the relevant collecting societies in order to avoid liability for infringement of copyright.

At Myerson, our expert Dispute Resolution team can advise on claims such as copyright infringement and other types of intellectual property claims such as breach of trademarks, registered designs and patents.  Our expert Corporate Commercial team can advise on non-contentious aspects of intellectual property so you can consider how best to protect your rights.  If you would like to speak to one of our specialist IP solicitors, please contact us on 0161 941 4000 or email us at lawyers@myerson.co.uk

 

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