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| By Sunnya343 - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=34010373 |
Jane Lambert
In Copyright - Performing Right Society v Qatar Airways Group 20 July 2020 NIPC Law, I discussed the decision of Mr Justice Birss, a judge of the High Court of Justice of England and Wales, in Performing Right Society Ltd v Qatar Airways Group QCS [2020] EWHC 1872 (Ch) (17 July 2020). That was an unsuccessful application by the national flag carrier of Qatar to stay a copyright infringement action against it by the Performing Right Society ("PRS"), a United Kingdom collecting society. The airline had argued that appropriate forum for the proceedings was Doha rather than London.
The PRS alleged that the airline's inflight entertainment system infringed the copyrights in its members' music on every flight from the moment its aircraft picked up passengers to the opening of the cabin doors at the destination. Copyright is granted by national authorities and applies to national territories. Nearly every country in the world has its own copyright laws. Qatar's is Law No. 7 of 2002 on the Protection of Copyright and Neighboring Rights which I mentioned in Qatar Intellectual Property Law on 1 May 2012.
The PRS contend that that Law applies when an aeroplane is parked at Doha Hamad Airport and continues to apply while it remains in Qatari airspace. However, the moment that it crosses the border of another country the copyright laws of that country applies for as long as the aircraft remains in its territory. For instance, if a flight is bound for Manchester the Copyright, Designs and Patents Act 1988 would apply as the aeroplane approaches the North Sea coast. The Act would continue to apply while the aeroplane is on the ground at Ringway. Indeed it would continue to apply until the aircraft clears United Kingdom airspace on its next flight.
In the action that the PRS has brought against Qatar Airways, the collecting society has claimed relief not just for alleged infringements of the Copyright, Designs and Patents Act 1988 for flights to and from the United Kingdom but also for alleged infringements of Law No 7 of 2002 while the Qatari aircraft are on the ground in Doha, in Qatari or international airspace, infringements of the copyright laws of the territories the Qatari aircraft cross and also infringements of the laws of those aircrafts' ultimate destinations.
Now, most of the journeys made by Qatar Airways neither start nor end in the United Kingdom and go nowhere near it. QR 0908, for example, is scheduled to take off from Doha Hamad International Airport at 23:35 local time tomorrow evening and land at Kingsford Smith Airport in Sydney at 20:25 the next day. The PRS claims relief for alleged infringements of Qatari and Australian copyright law in the English proceedings.
How could that be possible? The answer is that in Lucasfilm Ltd and others v Ainsworth and Another [2011] 4 All ER 817, [2012] 1 AC 208, [2012] 1 All ER (Comm) 1011, [2011] 3 WLR 487, [2011] FSR 41, [2011] UKSC 39, [2012] EMLR 3, [2011] ECDR 21, [2011] Bus LR 1211, the Supreme Court of the United Kindom decided that the courts of England and Wales can have jurisdiction over claims for infringement of foreign copyrights by actions that take place outside the UK so long as the alleged infringer is within their jurisdiction.
The fact that an English court can decide whether a foreign copyright has been infringed and award damages or other relief if it decides that the copyright has been infringed, does not mean that it should decide such issues. The exercise of that jurisdiction is subject to an important doctrine called "forum non conveniens". If it is more appropriate for a court in another country to try the action, the English court should stay (that is to say, stop) all further proceedings in England and allow the parties to resolve their dispute in that other court.
Qatar Airways tried to invoke the forum non conveniens doctrine in the proceedings before Mr Justice Birss. In order to succeed, a defendant has to satisfy the English court that there is another 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". Now the court has to look at the issue of convenience not just from the point of view of the defendant but also from the point of view of the claimant. In his judgment, Mr Justice Birss considered the following factors:
"i) the personal connections the parties have to the countries in question;
ii) factual connections which the events relevant to the claim have with the countries;
iii) applicable law;
iv) factors affecting convenience or expense such as the location of witnesses or documents."
On the first point, England was obviously likely to be more convenient for the claimant than Qatar as it is an English company and Qatar more convenient for the defendant but the defendant flew frequently to and from the UK and had plenty of interests here. As to the factual connections, the defendant's aircraft flew everywhere so the alleged infringements will have taken place everywhere. Issues on the applicable laws included such matters as language, the costs that could be recovered and each country's rules on conflicts of laws. On a number of issues, the practice of the English courts was compared to the practice of the courts of Qatar. The claimant's witnesses were in England whereas the defendant's were in Qatar. There would have to be a lot of translation wherever the case was held. The judge took all these matters into consideration and concluded that the defendant had not shown that Doha was more appropriate than London.
Factors that the judge appears to have taken into account were that Qatar us a civil law and not a common law jurisdiction, proceedings would take place in Arabic and not English, costs awards in Qatar tend to be much lower than in England, it is not clear whether, and if so how, the Qatari courts would apply foreign copyright law and there are no specialist intellectual property courts in Qatar. As I mentioned in my article yesterday, there is another court in Qatar where none of those objections would apply. The Qatar International Court is an English speaking common law court with judges from the UK and other common law jurisdictions. Its President is Lord Thomas of Cwmgiedd. Its conflict rules are modelled on those of England and Wales. It awards costs on the same scale and upon similar principles as the courts in London. There is no mention of the Qatar International Court in the judgment and the airline does not appear to have suggested it as an appropriate forum. Whether it would have made the difference to Mr Justice Birss's judgment will never be known but it is certainly worth consideration should there be any other similar case involving Qatar or indeed Abu Dhabi, Dubai or Kazakhstan which also have English speaking common law courts.
Anyone wishing to discuss this topic may call my clerk on +44(0)7986 948267 or send me a message through my contact page while this emergency continues, I shall gladly respond by phone, VoIP or email.
