PRS For Music, the music collective rights management company has won an initial jurisdictional challenge in the High Court against Qatar Airways.
PRS are bringing an action against QA for copyright infringement of some of its members’ music. QA responded to the claim by making an application to the Court to have the claim stayed on the grounds that the English Courts were not the appropriate venue for this case to be heard. PRS has won this first stage of proceedings, subject to any further appeal from QA.
Usually, an airline will pay royalties to the copyright holder (normally through intermediaries such as a management company) to use their music.
PRS pays royalties to its members when “their work is performed, streamed, downloaded, reproduced, played in public or used in film and TV” according to its website. QA has allegedly been using some of its musical repertoire, owned by various members of PRS, in its in-flight entertainment system without a music licence.
They argue PRS’s members have not received royalties from QA in breach of their members’ copyright despite PRS having previously attempted to contact QA about this issue but not receiving a response.
PRS published a stating: “With no equivalent representative collective management organisation situated in Qatar, Qatar Airways has for decades evaded licensing the performing right in copyrights used in its in-flight services. After having sought to license Qatar Airways through customary business channels without response, PRS for Music started legal proceedings against Qatar Airways in December 2019.”
PRS is seeking damages on the historic and continuing infringement and use of the members’ copyright.
This dispute was forced to consider jurisdictional issues, given QA is based in the Arabian Gulf yet flies all over the world, whilst PRS is a UK company whose members’ music is played worldwide. For PRS the case should be heard in the English courts given that it had already spent considerable funds in bringing this claim .
Both parties agreed that the case was justiciable in the UK courts, in recognition of the principles established in Lucasfilm Limited v Ainsworth  UKSC 39 whereby the English courts can have jurisdiction for copyright infringement by non-UK acts/under non-UK law when there is a basis for in personam jurisdiction.
QA, however, argues that the English courts were not the appropriate forum for bringing the claim. As such, Mr Justice Birss, the judge in this case, had to grapple with the forum non conveniens principles and tests set out in the leading case in this area of law which is Spiliada Maritime Corp v Cansulex Ltd (The Spiliada)  AC 460.
QA said the Spiliada test applied to this case as follows:
“(1) Is there another available forum which is clearly and distinctly the natural forum, that is to say, the “forum with which the action has the most real and substantial connection?
(2) If there is, is England nevertheless the appropriate forum, in particular because the court is not satisfied that substantial justice will be done in the alternative available forum?”
PRS countered this by stating that the test should in fact be construed as the following:
“Stage 1: Qatar Airways bears the burden of satisfying the Court that the Qatari court is an available forum with competent jurisdiction to determine PRS’s claim and is clearly or distinctly a more appropriate forum than England for the trial of the issues. If it fails to satisfy the Court of these matters, a stay should be refused.
Stage 2: If the Court determines that the Qatari court is prima facie more appropriate, it must nevertheless refuse to grant a stay if PRS demonstrate that, in all the circumstances of the case, it would be unjust for it to be deprived of the right to trial in England.”
Both sides approached the Spiliada test quite differently.
Mr Justice Birss dismissed QA’s application, agreeing with PRS that jurisdiction in the English courts had been properly established and rejecting QA’s arguments that Qatar was the appropriate forum. He summarised, at paragraph 69, as follows:
“The case is really a global copyright dispute between a UK holder of those global rights and a Qatari user of the protected content who is using it all over the world. The dispute has a connection to every state to and from which QA flies planes. Nevertheless the dispute does clearly have a more real connection with the UK and Qatar than it does with any other state. However as between the two, the fact that a higher share of any damages may be due for acts to which Qatari law is applicable than those for which UK law is applicable does not make Qatar clearly and distinctly the forum with which the dispute has the most real and substantial connection.”
“I reject QA’s case on forum non conveniens. There is no need to consider stage 2. I will say that I was doubtful about the argument of PRS at stage 2. In other words, if I had found Qatar to be the natural forum for this dispute, I would have stayed the claim.”
This case has shown how, if a party disputes the jurisdiction in a case which has a very international element and where multiple jurisdictions could potentially be a forum conveniens, that party must show how another jurisdiction would be more suitable. It isn’t enough to merely say that a particular jurisdiction is a forum non-conveniens. QA attempted to show that Qatar was the forum conveniens but failed to persuade the judge that this was the case.
PRS are now at liberty, subject to any appeal from QA of course, to proceed to a trial on liability.